<f * 1* 



>> ?*+ 






^°» 






*°^ 




v , 






^ v 



■% o 







-. V " / 




1 *►* °*V ^ 



.0 %. 









& 






^ ^ :4te- +* <? •'■ 





# <x^ 



4 o 
o 



>*5 










P- 







^ 

% 












«** A G <>, *'..«* A 

* » ^ n~ o » o "*X <J^ 





^o* 








ESSAYS 



HUMAN RIGHTS,. 



AND THEIR 



POLITICAL GUARANTIES 



BY E. P. HURLBUT, 

COUNSELOR AT LAW IN We CITY OF NEW YORK, 






NOTES BY GEORGE COMBE, 



FIFTH THOUSANDTH. 



NEW YORK: 
FOWLERS AND WELLS, 

PHRENOLOGICAL CABINET, 131 NASSAU STREET 
AND BY BOOKS KI.LERS GENERALLY. 

1848. 







Entered, according to Act of Congress, in the year 1845, by 

GREELEY & McELRATH, 

in the Clerk's Office of the District Court of the Southern District of New York 



TABLE OF CONTENTS: 



CHAPTER I. 

THE ORIGIN OF HUMAN RIGHTS Page7to27 

Rights are not created by the law. — It cannot prescribe a duty or declare a 
right except in consonance with the Natural Laws. — The law ought to be 
merely declaratory of Natural Rights and Wrongs.— The necessity of a Men- 
tal Philosophy to a proper understanding of Human Rights. — Phrenology 
adopted as the true Philosophy of Mind. — Mr. Bentham's error in denying 
Natural Rights. — Theory of Human Rights based on the innate powers and 
dispositions of the mind. — The fundamental rights of man are, the Right to 
Existence and the Right to Happiness. — The Argument stated. — The Natural 
Depravity of Man denied. — The faculties of Mankind considered in reference 
to the Social State. — The Argument. — Right to live in Society inferred. — And 
such being the right of mankind, the State cannot require the surrender of 
any Natural Rights from the Social Man. 

CHAPTER II. 

THE TRUE FUNCTION OF GOVERNMENT p. 28— 46 

Government is a thing of Moral Necessity, arising from inferior intellectual and 
Moral organizations in a portion of Mankind. — The doctrine of Equality con- 
sidered. — What degree of moral restraint may be imposed by Government. 
— A good man needs no coercion from the law. — The true idea of Civil Liber- 
ty. — The adaptation of the Laws to the Constitution of the Human Mind. — 
The laws ought to be general, equal, and impartial. — Privileges at war with 
Rights. — The usurpation and injustice of Special Legislation. 

CHAPTER III. 

THE CONSTITUTION OF GOVERNMENT p. 46— 61 

The people as Sovereign by the Constitution delegate the' power of govern- 
ment to their representatives or agents. — In a pure Democracy there is no ne- 
cessity for a written Constitution. — Reasons for a written Constitution in a 
Representative Government. — The office of the Constitution. — It is not irre- 
vocable — but may be* altered or changed at the pleasure of the majority of 
tht people. — The people cannot bind themselves irrevocably to any form of 
Government or mode of administration. — The distribution of the powers of 
Government by the Constitution. — Appointment of officers — Their choice by 
the people. — Reflections upon American imitations of the British Constitu* 4 >ju 



IV CONTENTS. 

CHAPTER IV. 

CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS p. 62— 86 

The tendency of Government to overact— Necessity of guarantiee against the 
oppressions of the State. — The Constitution ought to be replete with prohi- 
bitions upon State authority. — Objections to the phraseology of some of the 
present prohibitions — These enumerated and reasons for more. — The Rights 
of Man require that the leading principles of Criminal Jurisprudence should 
be settled in the fundamental law of the State. — The State cannot take ven- 
geance upon a prisoner — It can only restrain a criminal from doing further 
wrong. — Theory of criminal restraint and treatment briefly stated. — The right 
to inflict the Punishment of Death denied. — Infringements upon the Rights of 
Opinion to be guarded against by the Constitution. — Religious Liberty is not 
well secured by the American Constitutions. — The observance of Sunday. — 
Enfranchisement of the Clergy. 



CHAPTER V. 

CONSTITUTIONAL LIMITATIONS CONTINUED p. 87—106 

Public Debt. — The Constitution of a State ought to guard against an unjust 
public debt by limiting the Expenditures of a State to its necessities. — What 
are the legitimate expenses of b State i — Except for these, the majority can- 
not bind the minority. — The "People's Resolution" — Legislative action upon 
it in the State of New-York. — The right of Eminent Domain — The necessity 
of defining the limits of its exercise.— Laws affecting the relation of Debtor 
and Creditor. — Proposed reforms to the New-York Constitution. 



CHAPTER VI. 

THE ELECTIVE FRANCHISE p. 107—123 

The basis of popular Suffrage — The proper relation of the individual man to 
the State. — Reflections on the Constitutional Provisions of New-York relative 
to the Elective Franchise. — Qualifications of an Elector — The Property Qual- 
ification. — What persons may not vote ? — Reasons for and against the Exer- 
cise of the Elective Franchise by Women. — Conclusion upon them. 



CHAPTER VII. 

RIGHTS EMANATING FROM THE SENTIMENTS AND AFFEC- 
TIONS p. 124—143 

The natural right of Self-Defence. — Appeal to Society for redress of Wrongs. 
— Neither Society nor an individual may take vengeance for a Wrong — But 
the State is bound to mete out Justice in all cases — and wrongs to the Senti- 
ments and Affections demand remedies which are not now provided by the 
laws.— The present remedies by affording only a pecuniary recompense are - 
improper. — Injuries to the Sentiments and Affections arising from slander, 
libel, seduction and adultery, &c. ought to be treated as Criminal offences — 
If not, the parties injured will resort with impunity to vindictive self-redress. 
— The duel can only be avoided by treating the wrongs out of which it arises 
as Criminal offences, 



CONTENTS. T 

CHAPTER VIII. 

THE RIGHTS OF WOMAN: p. 144— 172 

The Equality of the Sexes in the eye of Justice. — Rights know no distinction 
of Sex. — The Rights of Woman inferred from her mental constitution. — The 
notion of Marriage being a civil contract refuted. — The absurdity and injus- 
tice of this idea of the Common Law. — Who may contract Marriage. — Second 
Marriages. — The right of Divorce. — The test in cases of Divorce should be the 
moral fitness for marriage of the party complained against. — Divorce ought to 
be total in all cases. — Marriage a sacred natural ordinance and not the crea- 
ture of the Law. — The relation of Husband and Wife under the Common 
Law. — Objections against the legal annihilation of the Wife. — The loss of 
moral dignity of the Wife under the Common Law — And the sacrifice of her 
rights of person and property. 



CHAPTER IX. 

THE RIGHT OF PROPERTY AND ITS MORAL RELATIONS.... p. 172— 198 
The origin of this right. — The sense of Property is innate in man, and is shared 
by him in common with some of the animal tribes — But when guided by the 
human intellect, and acting under the impulse of the sentiments proper to 
man, it rises to great dignity and importance. — The natural right of Property. 
— The views of various writers on this subject considered. — Man's true rela- 
tion to Property and Wealth. — The abuse of Wealth. — Diversity of the hu- 
man faculties in reference to the acquisition of Property. — Inequality of Men's 
Estates the result of their mental constitution. — The laws ought not to inter- 
fere to retard or benefit any man in the acquisition of Wealth. — They can 
only protect his acquisitions. — The evil of Corporations. — Factitious Credit 
Systems — Nature's Credit System. — Speculation and Paper Money. — Laws af- 
fecting Trade and Business. — Right of Eminent Domain and its proper limi- 
tation. 



CHAPTER X. 

INTELLECTUAL PROPERTY p. 198— 219 

The Natural Right of an Author to exclusive and perpetual property in his copy. 
This right is not surrendered by publication.— The old Common Law ac- 
knowledged and protected this right.— Opinions of Mansfield, Blackstone, and 
the great English Judges on this subject.— This right at Common Law was 
impaired by the Statute of Ann.— But this cannot affect the Question in this 
Country. — In the State of New- York the Common Law is adopted by the Con- 
stitution — and by it the right of an author to exclusive and perpetual proper- 
ty in his Copy ought to be upheld, without reference to the Act of Congress. 
—Foreign Authors ought to be protected against the piracy of their works by 
American publishers 



ESSAYS 



ON 



HUMAN RIGHTS AND THEIR POLITICAL GUARANTIES. 



CHAPTER I. 

THE ORIGIN OF HUMAN RIGHTS. 

Since the period of the Revolution, scarcely an attempt 
has been made by any of our citizens to show the origin, and 
to define the extent, of human rights. The Declaration of 
1776 contained several broad assertions upon this subject, fa- 
voring human equality, and the sanctity of natural rights ; 
but did not attempt much more than to assert the sacred in- 
violability of human life, liberty, and happiness. 

A celebrated political writer of that period discussed at 
some length the rights of man in opposition to the principles 
of the British Constitution ; but he rather combated error 
than asserted truth ; and while he demolished, by his argu- 
ments, the structure of European governments, his Essay fell 
short of establishing the rights which he defended upon the 
surt foundation of natural truth. He was not armed with 
the trae philosophy of mind. 

While the Constitution of the United States was undergo- 
ing discussion prior to its adoption, the Essays of " The Fed- 
eralist" were presented to the American people by three of 
the most eminent men of the day ; — and this masterly work 
contains the only true and complete defence and exposition 
of the principles of Republicanism, which has ever fallen 
from an American pen. 



8 HUMAN RIGHTS AND THEIR GUARANTIES. 

But these Essays, excellent as they are universally consid- 
ered to be, fall short of affording a complete political philos- 
phy ; since, supposing them to be well grounded upon 
natural truth, they discuss only the powers of the General 
Government, which are limited ; and omit altogether the 
subject of State legislation, which immediately affects and 
controls the most important rights of the citizen. 

During the half century now past, what discoveries have 
we made in the principles of legislation ? What have we 
done toward the establishment of wise and just laws, and in 
the maintenance of their stability ? Do we not pass laws 
and repeal them ? — and condemn to-day what we sanctioned 
yesterday ? Is the American legislator grounded upon any 
philosophy of mind ? Does he know the certain nature of 
the beings whom he binds by the laws ? And are those laws 
in harmony with the law of their nature ? 

These are questions of grave importance to the American 
people, and concern both individual happiness and our na- 
tional existence. For it is the destiny of every government 
which outrages humanity, to fall ; and the truly g**eat and 
noble are the first to transgress unjust laws — faithful as they 
ever are to their higher allegiance and better destiny. 

The duty of the legislator is simply to conform to natural 
truth. He is the mere " minister and expositor of nature." 
If Infinite Goodness has ordained the employment of the hu- 
man faculties for the attainment of happiness, and invited 
their activity by surrounding them with the means of em- 
ployment and gratification, human wisdom has but one work 
to perform, and that is, to reduce the means of happiness to 
possession according to the natural design. Man, then, 
must know himself, and his true relation to his fellow-men 
and to external nature. Ail truth becomes natural truth — all 
rights, natural rights— and all wrongs, natural wrongs. Our 
business is to perceive, not to create. Man makes not good 
nor evil. He cannot confer rights, nor create wrongs. He can 
only sanction and forbid in consonance with the natural laws. 

"Those rights," says Sir William Blackstone, "which God and Nature 

I have established, and are therefore called natural rights, such as are life 

and liberty, need not the aid of human laws to be more effectually invest- 



THE ORIGIN OF HUMAN RIGHTS. 

cd in every man than they are ; neither do they receive any additional 
strength when declared by the municipal laws to be inviolable. On the 
contrary, no human legislature has power to abridge or destroy them, un- 
less the owner shall commit some act that amounts to a forfeiture. 

" The case is the same as to crimes and misdemeanors that are forbid- 
den by the superior laws, and therefore styled mala in se, such as murder, 
theft, and perjury, which contract no additional turpitude from being de- 
clared unlawful by the inferior legislature ) for that legislature in all these 
cases acts only in sab ordination to the Great Lawgiver, transcribing and 
publishing his precepts. So that, upon the whole, the declaratory part of 
the municipal law has no force or operation at all with regard to actions 
that are naturally or intrinsically right or wrong. 

" But with regard to things in themselves indifferent the case is en- 
tirely altered. These become either right or wrong, just or unjust, duties 
or misdemeanors, according as the municipal legislature sees proper for 
promoting the welfare of society and more effectually carrying on the 
purposes of civil life. Thus our common law has declared that the goods 
of the wife do instantly upon marriage become the property and right of 
the husband, and our statute law has declared all monopolies a public of- 
fence ; yet that right and this offence have no foundation in nature, but 
are merely created by lata for the purpose of civil life. 11 

The former part of this extract regarding natural rights is 
entirely sound, and expresses with great clearness the view 
which I wish to present — namely, that the law is merely 
declaratory as to all natural rights. It does not create, but 
enforces them ; the right depending not upon the law, but 
the law rather upon the right itself. 

The error in this quotation which I wish to combat is, the 
supposition that the law has anything whatever to do with 
things " which are in themselves indifferent." " These," 
says the learned commentator, " become right or wrong, just 
or unjust, duties or misdemeanors," as the legislature sees 
fit to declare thern. 

This is placing man's destiny in the hands of his fellow- 
men, rather than in the hand of his Creator. Here is spread 
wide the grand entrance-door of tyranny. What may not 
the legislature see fit to declare to be right or wrong, duty or 
misdemeanor ! 

If the law forbid that which nature allows, it restrains hu- 
man liberty. If it enjoin a duty which nature does not im- 
pose, it inflicts an act of tyranny upon man. If it confer a 
right which nature has not ordained, it robs some one or 
many of that which it confers, and works injustice among 
men. The instance quoted by the writer, where the law 



10 HUMAN RIGHTS AND THEIR GUARANTIES. 

gives the goods of the wife instantly upon the marriage to 
the husband, is a most apt illustration of this species of in- 
justice. Here the law creates a right arbitrarily, and with- 
out a shadow of foundation in nature. But this right con- 
ferred upon the husband implies a right taken from the wife ; 
and hence an actual wrong to her, which the law ought not 
to inflict. 
> What I design to contend for is, that the laws shall be 
merely declaratory of natural rights and natural wrongs, and 
that whatever is indifferent to the laws of nature shall be 
left unnoticed by human legislation ; that all rights and duties 
are natural ; and that legal tyranny arises wherever there is 
a departure from this simple principle. 

How then can we avoid this tyranny ? What need we to 
know in order to arrive at justice and safety, in the work of 
human legislation ? I answer, that we must know man's 
mental constitution and its relation and adaptation to the ex- 
ternal world. 

.Nature outraged appeals from human to the divine laws. 
We have but to know ourselves and our natural relations, 
and we may be redressed at once. 

But can we know the true nature of man ? Is the natural 
man and the man of society one and the same being ? Has 
not education changed his character, and luxury disordered 
his mind ? Have the civilized and the savage man one com- 
mon nature, which can be ascertained, and upon which we 
can base a speculation as to human rights ? I answer, that 
the state of civilization is the true natural condition of the 
human race. It is in this state only that the true nature of 
man can be fully exhibited. He is endowed with faculties 
which inevitably tend to high civilization and improvement. 
A faculty improved is still the same faculty. A sentiment 
enlightened does not lose its original character. But if we 
need to see man in a primitive state in order to detect his 
natural characteristics, the means are always at hand — for 
every human being begins life a savage. In the nursery of 
human infancy are betrayed the true natural desires, emotions, 
and faculties of all human beings. We need not go back to 



THE ORIGIN OF HUMAN RIGHTS. 11 

the traditions of the early ages of the world, for the cradle 
presents us with the early age of every man — of savage man 
in the bosom of civilized life. 

Tyranny has no excuse. It cannot any longer affect un 
certainty and doubt as to the true and certain mental charac- 
teristics of mankind. 

Man is at length demonstrated. The universal man stands 
forth to modern view with his mental forces well defined and 
well known. Modern discovery has given to each native de- 
sire, to each emotion and faculty of the human mind, " a lo- 
cal habitation and a name," and presented to the philanthro- 
pist and statesman the means of defining human rights, and 
of conforming human legislation to the eternal standard of 
truth and nature. I allude to the discoveries of the great 
Gall, and to that system of intellectual and moral philosophy 
which has thence resulted, and which one of the greatest of 
his disciples has justly denominated " the last and best of 
human sciences." . 

Dr. Gall and his disciples have demonstrated, by observa- 
tion upon a world of facts, that the brain is the medium 
through which all human passion, sentiment, and intellect, 
are manifested, — that the force and degree of these manifes- 
tations depend (other things being equal) upon the size of 
that organ, — that the size of the brain, or any particular por- 
tion of it, can in general be accurately determined, during 
life, from an outward examination of the human scull, — that 
the brain is composed of a congeries of organs, having each 
its peculiar function, namely, the manifestation of a peculiar 
faculty, sentiment, or passion, and having that office alone. 
Assuming, therefore, that they have, after more than forty 
years of patient labor and investigation, discovered the pecu- 
liar function of each portion of the brain, they declare that 
they have demonstrated, by physiological facts, the true na- 
tural faculties and dispositions of the human mind. 

These conclusions are not derived from an examination of 
any peculiar people. All human kind have passed under 
their observation — from the rude Tartar to the most enlight- 
ened European — the children of the sun, and the inhabitants 



12 HUMAN RIGHTS AND THEIR GUARANTIES, 

of earth's frozen regions — the educated and the ignorant 
— all colors, all classes and conditions of men — the ancients, 
from their decayed sepulchres, and the moderns in the midst 
of life— both sexes and all ages — have passed under their 
most rigid examination ; and the same natural faculties and 
dispositions have been found in all. 

Their conclusions, therefore, embrace all human kind. — 
Produce a man, and to them you exhibit a being endowed 
with the sum of those faculties and dispositions which they 
have demonstrated as pertaining to humanity. The idea of 
Man, to them, is but the embodying of certain known and 
well-defined powers, sentiments, and passions, in a living be- 
ing. They know his desires, emotions, and faculties — what 
he wants, what he wills, and what he suffers. No distance 
renders his case uncertain. Color clouds not their observa- 
tion, nor does time outlaw his claims. He is a Man — that 
suffices to define his certain nature, and his ultimate destiny. 
Climate, country, distance, government, the distinctions of 
society, can neither change his nature, nor annihilate his 
rights. The king, the subject, the master, and the slave — 
each is a man ; no more nor less than a man ; and in the 
eye of this philosophy, each is bound to acknowledge the 
other to be a man, with all the rights pertaining to humanity. 

This science does not deny that a very great disparity ex- 
ists among men in regard to their mental constitutions. On 
the contrary, it asserts that there are vast individual and na 
tional differences in respect to both intellectual and moral en 
dowments, and that this difference is mainly dependent upoi_ 
their physical organization. But each man possesses, never- 
theless, the faculties and sentiments peculiar to humanity, 
although as to each of his natural powers, one man may dif- 
fer from another, either in the strength, activity, or peculiar 
combination of his faculties. What the phrenologist asserts 
is, that no sane man has a faculty which another has not. — 
He admits a difference in degree, although none in hind. 

I beg, therefore, to be allowed the advantage of certain 
great and fundamental truths derived from phrenology, which 
I esteem as well established as any truths in natural science. 



THE ORIGIN OF HUMAN RIGHTS. 13 

First. That mankind haye one common nature, which is 
How ascertained and well defined. 

Second. That this common nature is composed of certain 
well-known intellectual faculties, moral emotions, and de- 
sires or passions, which are innate, and spring from the very- 
existence of a human being. 

Of these innate powers, I need not enumerate more than 
a part, and such only as may be found essential to the dis- 
cussion of the topic stated in the title to the present chapter 
— to wit, the desire of life — the desire of food— the desire of 
safety — the desire of exclusive property and possession — the 
innate love of the opposite sex — the faculty to speak and 
communicate ideas — the sentiment of reverence and awe — 
the disposition to have faith — to wonder — a love of the beau- 
tiful and perfect — a love of praise and commendation — a de- 
sire to see others happy — a love of justice, or sense of right 
— a feeling of self-esteem, or pride. 

Now these, and all the other natural faculties of man, are 
adapted to harmonize with external nature — so that each 
faculty finds in the world an object upon which to rest for 
its appropriate exercise and gratification. It would, there- 
fore, seem to be the natural design that every power of the 
mind should be exercised. Wherever Nature has ordained 
desire, she has spread before it the means of gratification. — 
From this we infer the right to its indulgence — and hence, 
also, the rights of man. 

Man has a right to the gratification, indulgence, and exer- 
cise of every innate power and faculty of his mind. The ex- 
ercise of a faculty is its only use. The manner of its exercise 
is one thing ; that involves a question of morals. The right 
to its exercise is another thing, in which no question is in- 
volved but the existence of the innate faculty, and the objects 
presented by nature for its gratification. 

To my own mind this derivation of rights seems so clearly 
just, that I would not attempt its further illustration — but 
that we meet in the works of the most celebrated writers 
with so much controversy upon this subject. 

"Natural law, natural rights/' says Mr. Bentham, in his Theory of Le- 
gislation, [p. 104,] " are two kinds of fictions or metaphors, which play so 



14 HUMAN RIGHTS AND THEIR GUARANTIES. 

great a part in books of legislation that they deserve to be examined by 
themselves." 

" The word rights, [p. 107,1 the same as the word law, has two senses 
— the one a proper and the other a metaphorical sense. Rights, properly 
so called, are the creatures of the law properly so called ; real laws give 
birth to real rights. Natural rights are the creatures of natural law ; 
they are a metaphor which derives its origin from another metaphor. . . . 
There is no reasoning with fanatics armed with natural rights/ &c. 

Speaking of the right of property, he says, [p. 137] — 

14 There is no such thing as natural property — and that it is entirely the 
work of the law. Property is nothing but a basis of expectation," &c. 

Mr. Bentham's editor, Dumont, explains in a few words 

[p. 113] the grounds of his author's errors: — 

" The first ray of light," says he, " which struck the mind of Bentham, 
in the study of the law, was the perception that natural rights, the ori- 
ginal pact, the moral sense, the notion of just and unjust, which are 
used to explain everything, were at bottom nothing but those innate 
ideas, of which Locke has so clearly shown the falsity. He saw that au- 
thors were going round in a vicious circle. Familiar with the method of 
Bacon and Newton, he resolved to transfer it to the subject of legislation ; 
he resolved to make jurisprudence an experimental science. He avoided 
all dogmatic words ; he rejected everything that did not express a sensa- 
tion of pain or pleasure ; he refused to admit, for example, that property 
was an inherent right, or a natural right, because these terms explained 
nothing and proved nothing. When he proposes a law, he docs not xjre- 
tend to find a corresponding law in the code of nature ; and by a common 
piece of legerdemain to present as a thing made already, the very thing 
he wishes to make." 

Here is a giant groping in darkness. 

All this error was the offspring of no ordinary mind. A 
great, a very great mind wandered thus far from natural 
truth, for the want of a true mental philosophy. This doc- 
trine leaves no foundation whatever for human rights, but 
the mere will, of the despot or the confused speculations of 
the metaphysician. According to this view, human laws 
create and confer the rights of humanity, and one man in 
one country may have rights to which another is a total 
stranger. And even if the laws confer no rights whatever, 
there is no harm done, for man is nothing before the law 
comes to create him ; and it may breathe into his nostrils pre- 
cisely such sort of life as the lawmakers please. His duty 
is to be thankful to the law for even the very smallest favors. 

The opposite view of this subject may be thus stated : — 

Life is the gift of a beneficent Creator ; but, once bestowed, 



THE ORIGIN OF HUMAN RIGHTS. 15 

it becomes a right as against all but the Donor. He who 
conferred can alone righfully take away. But this gift was 
for a beneficent purpose ; it would not be a blessing, but a 
burden, unless it was designed for happiness ; and we may 
assume, then, that life is bestowed to the end that the being 
created may be happy. Man has a right to claim that the 
intention of the Giver of life shall be fulfilled. He has a 
right, therefore, to happiness. . 

The fundamental rights of man are these : — 

1. The Right to Existence, and 

2. The Right to Happiness. 

The Creator may bestow or withhold the former at his 
pleasure ; but it is inconsistent with his benevolence to be- 
stow the former without the latter. 

The fact of existence is one evidence of the right to exist. 
Rut Man has further evidence from the hand of Nature of his 
right to life ; since he is endowed with instincts devoted to 
its preservation. The gift, so to speak, came in a case for 
its protection. 

1. He has the instinctive love of life, which prompts the 
desire to continue existence. 

2. He has an instinctive love of food, whose promptings 
support life. 

3. He has an instinctive dread of danger to life, which im- 
pels him to shrink from all harm. 

4. He is instinctively watchful to anticipate and avert evil 
to his existence. 

5. He has an innate disposition to combat, oppose, and de- 
stroy whatever and whosoever threatens danger or injury to 
him. 

Now, because these are the natural endowments of the 
man, they prove as plainly as natural revelation can, that 
the intention of the Giver of life is that man shall enjoy life. 

The gift and the accompanying impulses for its preserva- 
tion establish the right of existence. 

But the right of happiness may require further illustration. 
This is to be inferred — ■ 

1. From the attributes of the Deity ; and 



16 HUMAN RIGHTS AND THEIR GUARANTIES. 

2. From the organization of man and the works of creation. 

Wheresoever the Creator is manifested in his works, we 
behold evidence of infinite beneficence. He has provided for 
the necessities of all his creatures. Every want is a source 
of pleasure, because its means of gratification are abundant. 
To create a being with wants which could not be gratified, 
would have argued the absence of benevolence ; but to 
create a being whose very wants should be a source of hap- 
piness, through their abundant gratification, is evidence of a 
most ingenious goodness. To surround a being with diffi- 
culties without the means or intelligence to overcome them, 
would have been evil ; but to ordain difficulties as the means 
of exercising the faculties of a created being, and of bringing 
him to a higher state of perfection, is a blessing emanating 
from divine wisdom and goodness. To endow man with sen- 
sibilities for the purpose of enduring pain, would be evil ; but 
to ordain those sensibilities for the enjoyment of pleasure, as 
the antagonist of pain, is good. 

There is no general law of nature which opposes the hap- 
piness of man ; on the contrary, his constitution is in com- 
plete harmony with the laws of matter ; and these may be 
rendered subservient to his advancement and happiness. 

Life, then, is bestowed by the Giver of all good for the pur- 
pose of happiness. If so, to live and be happy is our right. 

But having a right to happiness, man has also a right to 
employ the means for its accomplishment. These means 
will vary according to the constitution of his nature ; for 
there must be an appropriate adaptation of the means to the 
end to be obtained. The right to be happy would be vain 
without the means of becoming so. The Creator, therefore, 
has endowed man with certain innate desires, emotions, and 
faculties, the gratification and exercise of which are the 
means of his happiness. Here is the consummation of man's 
rights — the right to gratify his natural desires ; to supply his 
natural wants ; to exercise his natural faculties, as the means 
of attaining happiness. 

Man's rights, then, are the incidents of his very nature ; 
and if we would define his rights, we must know his mental 
constitution. 



THE ORIGIN OF HUMAN RIGHTS. 17 

% 

If nature has implanted in all men one uniform desire for 
any particular gratification, it becomes not man to deny that 
in some form indulgence is lawful. A strong natural desire, 
denied its appropriate indulgence, is a source of constant mis- 
ery. Why the universal desire, unless it be lawful ? Nature 
has made it lawful by allowing its universality. We speak 
not now of disordered appetite, but of healthy, natural de- 
sire, directed and restrained by the intellect and superior sen- 
timents. 

"Every species of creature" (says Bishop Butler, in liis 'Analogy of 
Religion, Natural and Revealed, to the Constitution and Course of Na- 
ture ',) " is, we see, designed for a particular way of life, to which the na- 
ture, the capacities and qualifications of each species, are as necessary as 
their external circumstances. Both come into the notion of such state, or 
particular way of life, and are constituent parts of it. 

11 Our nature corresponds to our external condition. "Without this cor- 
respondence, there would be no possibility of any such thing as human 
life and human happiness ; which life and happiness are therefore the re- 
sult from our nature and condition jointly ; meaning by human life, not 
living in the literal sense, but the whole complex notion commonly un- 
derstood by those words." 

As well may a man's right to exist be denied, as his right 
to " move and have his being " in the manner pointed out by 
the laws of his organization. If it is obvious from his physi- 
cal structure that he was destined to walk erect, who may 
deny his right to do so ? If it is equally clear, from his men- 
tal organization, that he has numerous natural wants and de- 
sires which demand gratification, and that his Creator has 
spread around him the means of indulgence, who can deny 
him this means of happiness ? Not man, surely. 

Let no one fear that dangerous conclusions may be drawn 
from these premises. There is a wide difference between 
the rational gratification of human desires, and the abusive 
indulgence of them. There is the sante difference, as be- 
tween eating and gluttony — between drinking and drunken- 
ness — between mirthfulness and satire — between justice and 
vengeance. We are not contending for the abuse, but for the 
enlightened gratification of man's natural desires ; not justi- 
fying violence to the laws of the Creator, but struggling for 
conformity to them. We are seeking to establish the divine 
origin of human rights, and not the divine origin of human 



18 HUMAN RIGHTS AND THEIR GUARANTIES. 

# 

transgressions. Here will be found no apology for vice, but 
a vindication of virtue. 

We are reasoning from the constitution of man as he comes 
from the hand of his Creator, and not from his transforma- 
tions under his abuses of his nature. I never understood the 
inquiry in the Jewish scriptures, " Is there evil in the city, 
and the Lord hath not done it ?" In the constitution of the 
human mind there can be no evil. In the abuses of that 
mind there may be much — but " the Lord hath not done it." 
Man may pervert his entire organization to the purposes of 
evil. Hands that were made to till the earth may be im- 
brued in a brother's blood. The human mind — that noblest 
emanation from the Divinity of Nature — may be exerted in 
the cause of crime and bloody ambition, instead of the study 
of nature and the advancement of truth and excellence 
among men. Wit may be perverted to biting sarcasm, and 
noble pride to imperious and repulsive arrogance. Faculties 
given to learn the right may be perverted to prove the wrong 
— and the noblest powers of the mind may be prostituted to 
the most degrading and mischievous pursuits ; but all this 
and much more proves nothing against the excellent nature 
of man, nor that the healthy indulgence and exercise of that 
nature can tend to the promotion of evil. 

When the constitution of man shall be correctly understood, 
he will be found worthy of his origin. He is admitted to be 
the master-work of an all-wise and beneficent Creator. This 
alone ought to be presumptive evidence in favor of the natural 
excellence of his character. They who assert the natural 
total depravity of man, ought to consider his source before 
they speak so harshly of him. It is not easily reconcilable 
with appropriate reverence for the Deity, for a creature to 
pronounce the noblest work of the Creator upon earth to be 
totally depraved. We have no very satisfactory evidence 
that man was ever any better than he at present appears ; 
nay, the evidence seems to be in favor of his progressive im- 
provement from the earliest ages of the world, so that if he 
is altogether evil now, in his advanced state of improvement, 
it is hard to conjecture how bad he may have been at first. He 



THE ORIGIN OF HUMAN EIGHTS. 19 

certainly could not have promised very fair at the commence- 
ment of his pilgrimage upon earth ! The earth itself has ad- 
vanced toward perfection and adaptation to the wants of or- 
ganized beings, by various stages and grades of improvement, 
and it is in harmony with all analogy to suppose that the 
races of animals and men have kept pace in their improve- 
ment with the globe which they inhabit. 

How can man be considered an utterly degraded being, 
when his natural endowments are such as we have supposed ? 
Take one of the sentiments proper to man — Ideality, or the 
love of the beautiful and perfect — and consider if a being en- 
dowed with this faculty has not at least some redeeming 
qualities! I quote a beautiful passage from Mr. George 
Combe :* 

" Where Ideality exists to a considerable extent, there is an innate de- 
sire for the beautiful, and an instinctive love and admiration of it. The 
arrangements of the Creator in the material world are so far from being" 
in opposition to it, that objects calculated in the highest degree to excite 
and gratify the feeling are eveiy where scattered in the most profuse 
abundance. "What are the flowers that deck the fields, combining perfect 
elegance of form with the most exquisite loveliness, delicacy and harmony 
of tint, but objects addressed purely to Ideality, and the subordinate facul- 
ties of Color and Form ? They enjoy not their beauty themselves, and 
afford neither food, raiment, nor protection, to the corporeal frame of man, 
and on this account some persons have been led to view them as merely 
Nature's vanities and shows, possessed of neither dignity nor utility. But 
the individual in whom Ideality is large will in rapture Sciy, that these 
objects, and the lofty mountain, the deep glen, the roaring cataract, and 
all the varied loveliness of hill and dale, fountain and fresh shade, afford 
to him the banquet of the mind ; that they pour into his soul a stream of 
pleasure so intense, and yet so pure and elevated, that in comparison 
with it all the gratifications of sense and animal propensity sink into 
insipidity and insignificance. In short, to the phrenologist, the existence 
of this faculty in the mind, and of external objects fitted to gratify it, is 
one among numberless instances of the boundless beneficence of the 
Creator toward man ; for it is a faculty purely of enjoyment — one whose 
sole use is to refine, exalt and extend the range of our other powers, to 
confer on us higher susceptibilities of improvement, and a keener relish 
for all that is great and glorious in the universe." 

Let us now continue our inquiry into the nature of man for 
the purpose of ascertaining from his mental constitution what 
are his natural wants and emotions, with a view to a correct 
derivation of his rights. Our inquiry will not be vain, for m 
this zountry there can be no excuse for the denial of a single 

* Lectures, p. 218. 



20 HUMAN RIGHTS AND THEIR GUARANTIES. 

right to any human being. We have but to prove a right 
and it may be established by law. Here is encouragement 
for the investigation of human rights. "We are our own law- 
givers, and our own tyrants, if, indeed, tyranny exist at all. 

What, then, let us inquire, is the first great natural want 
of man arising from the constitution of his mind ? It is the 
society of his fellow-man. 

The hermit restrains and perverts his nature. He may 
escape controversy with others, but he makes war upon him- 
self. He exists without living, and dies while he lives — for 
it is the essence of human life to dwell in such a position, as 
that all the faculties of the understanding shall have full and 
various employment, and that all the desires and emotions 
of our nature shall have frequent, wholesome, and harmo- 
nious gratification and exercise. 

Man is so constituted that this cannot take place except in 
general society. Accordingly, all tradition and history repre- 
sent man as associated in some manner with his fellow-men. 
From the earliest ages to the present time, in some form or 
another, under some sort of league or fellowship, the vari- 
ous tribes, races and nations of mankind have associated to- 
gether, have acknowledged some common head, king, or 
government, or have been leagued by some compact, volun- 
tarily entered into, and often enduring for centuries, guaran- 
tied only by the spontaneous and universal feeling of an in- 
ward and all-absorbing desire of man's nature for companion- 
ship with his fe] low -man. This arises not from a calculation 
of greater security, nor from the facilities which society 
affords for pecuniary gain. Society owes not its origin to a 
sense of fear, nor to the love of money. Neither of these is 
sufficient to bind man to society in its worst forms, and at 
the hazard of sacrificing many of his dearest rights and in- 
terests. The worst social condition he can better endure 
than solitude. He can bear the severest blow of tyranny 
rather than banishment from the face of man. Accordingly, 
he will endure the bitterest oppression in preference to the 
sweetest solitude. It must be, then, that for some great 
cause society is as necessary to his moral mature as food or 



THE ORIGIN OF HUMAN RIGHTS. 21 

atmospheric air is to his physical — that there are many deep 
demands of his higher nature that can only be answered in 
the midst of men, and which, unsatisfied, leave such an 
aching void in his soul, that life becomes a burden out of 
human society. And here I beg to repeat, that this arises 
not from a sense of fear, nor from the want or insecurity of 
property, out of society. You may wall in the solitary man 
so that nothing can harm him ; you may give him all of this 
world's goods that he can enjoy in his lonely place, and he 
will pine away and wish to die ; for the aching void of his 
nature is not filled, and he yet needs, as the vital air of 
heaven, the exhilarating influences of human society. These 
alone can breathe into his moral nature the breath of life. 
Surround him with men, and his moral powers, his higher 
and nobler faculties spring into activity, and he moves in the 
moral and intellectual majesty of the noblest work of the 
Creator upon earth. How is this ? It may be thus explained : 

If it can be made to appear that man, in the social state, 
hath, as respects a large number of his desires and wants, as 
sure a guaranty for their gratification as he can possibly have 
out of it, then it follows that, as respects these, he loses 
nothing by going into society. If, moreover, it shall appear 
that, as to other portions of his nature, he can be better 
gratified in the midst of men, than as a solitary being, in so 
far as this portion of humanity is concerned, he becomes a 
gainer by human fellowship ; so that, if the case were left 
here, we should have shown that man gains something, and 
surrenders nothing, in the social state. But if, in proceeding 
further, it can be established that his noblest endowments of 
intellect and sentiment cannot be exercised or gratified in any 
respect, except in the midst of men, then we show a case of 
moral necessity, — that the human constitution demands so- 
ciety, — and we establish the absolute right of man to dwell 
in the society of his fellow-men. 

It will suffice to refer to a few instances in which the pow- 
ers of our nature are as well protected and exercised, — and 
others in which they are better provided for in society, than 
in the solitary state. 



22 HUMAN EIGHTS AND THEIR GUARANTIES. 

1. The love of life. Life is safest in society. Such is the 
man's nature that he will protect his fellow, rather than do 
him harm. Benevolence prompts to sympathy and kind pro- 
tection ; and the sense of justice adds force and certainty to 
the operation of natural beneficence. All history shows that 
men, in society, guaranty, in some form, and by some mode 
or action, the right to life. Besides, in civilized life, where 
the arts and sciences have attained to any considerable ad- 
vancement or perfection, the comforts of life, and the means 
of its protection and safeguard, are so abundant and well ap- 
plied, that a great increase of security and protection to life 
is thereby afforded. 

2. The means of subsistence are greatly increased in the 
midst of the most civilized nations of mankind, by a superior 
cultivation of the earth, by commerce, mechanical invention, 
and more extended and diligent labor. 

3. The desire of property is held in most sacred regard by 
societies of men, its acquisition fostered, and the right to ex- 
clusive possession universally acknowledged. This right is 
not surrendered or abridged, necessarily, by society ; while 
the means of attainment are greatly increased, by an inter- 
change of commodities, a division of labor, improvement in 
the arts and sciences, and intellectual cultivation ; and there 
need be no interference with it, except for contributions for 
the general good, which in amount fall far short of the ad- 
vantages for its acquisition and protection gained by society. 
Property gains by society, over and above all loss in contri- 
butions for the public use. 

4. The loves of the sexes, in all well-regulated societies, 
are protected by the laws, and their sacred exclusiveness held 
inviolable. In this respect, man and woman are greatly ele- 
vated and improved by their social organization in civilized 
life. 

5. The same may be said of the love of offspring. The 
parent's love, hope, and pride, receive far greater gratification 
in society, than it is possible for the solitary man to enjoy. 

It thus appears, that these instinctive desires derive a great- 
er gratification by human fellowship, than in solitude, and as 



THE ORIGIN OF HUMAN RIGHTS. 23 

yet man is a gainer by communion with his brethren. A 
slight degree of reflection will also show how finely his nobler 
nature is attuned to human fellowship. 

We may concede that the solitary man may exercise his 
reverence and awe — that his wonder may be indulged — and 
that his love of the beautiful, and his pride, may be gratified 
to some extent in solitude, — yet it would not be difficult to 
show a decided advantage in all these respects arising to him 
from extensive human intercourse. But there remain certain 
well-defined powers, sentiments, and faculties, peculiar to 
man, which can have no satisfactory exercise out of general 
society. 

1. " The faculty of language," says Mr. Combe, " implies 
the presence of intelligent beings, with whom we may com- 
municate by speech." In how many ways is this medium 
of communicating ideas brought into requisition amid the 
multitudes of men : from simple exclamation, rising upward 
to the accomplished discourse, the eloquent oration, the ex- 
citing romance, the drama, the epic poem, the page of his- 
tory ! What a world of thought and action stands thus re- 
vealed to the human intellect ! 

2. Benevolence demands a wide field of enterprise and 
exertion. It enfolds all created beings in its love. The more 
extended its field of action, the greater gratification flows 
from it. It demands many objects on which to rest with 
kind sympathy and expansive love. It would embrace 
a world of intelligent and sensitive beings. With 
what sweet expression it adorns the human coun- 
tenance! How doth it exalt that noble brow, and light 
up the features with an expression of love and tender- 
ness, which makes it the welcome visitant of the cottage 
and the palace — of the abode of suffering and distress, as 
well as the scene of happiness and joy ! Give place among 
men for this gentle visitant — this minister of mercy — and 
bright radiance of the divinity among the dwellers upon the 
earth. Benevolence demands the society of men, to rejoice 
in their joy, to sorrow in their griefs, to cheer the despond- 
ing, and to shed her radiant smile of love and tenderness 



24 HUMAN RIGHTS AND THEIR GUARANTIES. 

upon all the sensitive creation. It has, in its very nature, 
express relation to surrounding life, intelligence, and sensi- 
bility. 

3. Man's sense of justice — the great monitor of the hu- 
man mind, forever prompting the inner man "to do unto 
another as he would that others should do unto him" — utter- 
ing the eternal rule of equity and right, — demands also to be 
in the midst of men — in the midst of human and moral ac- 
tion ; of which it is the great and impartial umpire. Admit 
a sense of justice, burning for action, " springing eternal in 
the human mind," having no other office than to prompt man 
to do right to his fellow-men, and yet suppose that his supe- 
rior nature can be indulged and exercised out of society ! 
This is the sovereign power of the human mind, the most 
unyielding of any ; it rewards with a higher sanction, it 
punishes with a deeper agony, than any earthly tribunal. It 
never slumbers — never dies. Without this sense of right, 
man would be unfit for human society. With it he is inca- 
pable of enduring solitude. It demands human conduct upon 
which to decide. It has no sphere of action in solitude. 

Mr. Combe, in his " Moral Philosophy," says, 

•'Neither benevolence, which delights in universal happiness — nor 
love of approbation, whose gratification is the applause and good opin- 
ion of others — nor veneration, which gives a tendency to respect and 
yield obedience to superiors — nor conscientiousness, which holds the 
balance wherein the rights of competing parties are weighed — has full 
scope and a sufficiently wide sphere of action except in general society. 
The domestic circle is too contracted for the purpose." 

Ancl again : 

" The faculties of causality and comparison, which are the fountains of 
reasoning, imply our coexistence with other intellectual beings, with 
whose perceptions and experience we may compare our own. Without 
combination, what advance could be made in science, art, or manufac- 
tures ? As food is related to hunger, as light to the sense of vision, so is 
society adapted to the social faculties of man. The presence of human 
beings is indispensable to the gratification and excitement of our mental 
powers in general. What a void and craving is experienced by those 
who are cut off from communication with their fellows !" 

If, then, the social state is necessary to the development 
and exercise of man's moral and intellectual nature, is it not 
absurd to suppose that he cannot live in society without sur- 
rendering a portion of his natural rights ? If society be his 



THE ORIGIN OF HUMAN RIGHTS. 25 

greatest want, is it possible that this demand of his nature 
cannot be answered without denying him the proper gratifi- 
cation of some of his remaining wants ? Has the wisdom 
of the Creator so poorly executed his plan, that one part de- 
feats another? Has Infinite Beneficence implanted in the 
same mind various ardent desires, the denial of any one of 
which will render man unhappy, and yet ordained that one 
natural want shall be gratified by the denial of another ? — . 
that man must elect which of all the craving desires of his 
nature he will indulge, and which he will restrain, and as he 
chooses, he shall live in society or out of it ? — and take 
which he pleases, society or solitude, certain parts of his 
craving nature shall remain for ever unsatisfied I Absurd 
and impious thought! Man's whole nature may be grati- 
fied, so that the harmony of its powers be not disturbed, — 
and government cannot demand the surrender of a single 
right as a condition of man's existence in the social state. 
The moralist can .easily show how the enlightened intellect 
and moral emotions, controling and regulating the passions, 
may present a man in the full enjoyment and exercise of his 
nature, and yet a blameless man. Let it suffice for me to 
show, that human legislators cannot, without an infringe- 
ment of human rights, deny to man the healthful and har- 
monious exercise of all his intellectual and moral powers, 
since this exercise is necessary to human happiness. 

It has been a favorite doctrine, that the individual substan- 
tially bargains with society upon becoming a member of it, 
by surrendering a portion of his natural rights for certain ac- 
quired rights or advantages, which the laws of government 
may confer. This doctrine has never to my knowledge been 
well defined ; but it is broadly asserted in most of our treatises 
on fundamental law. 

This is the apology of tyranny for its usurpation of human 
rights. It admits the deprivation of rights which it causes, 
but points you to certain benefits conferred by the law as a 
remuneration for your loss. 

Government here has all the advantage. What proper 
benefit it assumes to confer, you had a right to before. So 



26 HUMAN RIGHTS AND THEIR GUARANTIES. 

that, in fact, the supposed legal benefit is but your natural 
right, and you thus retain one right as a compensation for the 
loss of another. But tyranny cannot be sustained without 
fraud as its ally ; and this is one of her most subtle pretences. 
Let us close this door to tyranny. Let us prove that nature 
confers all rights ; and that the only business of the law is to 
protect them. 

How can an individual treat with Government on such 
terms as will ensure an equitable arrangement between 
them ? It is the lamb bargaining with the lion, and the only 
question is, whether the former shall be devoured all at once 
or only by piece-meal. 

The moment we admit the principle that one natural right 
must necessarily be surrendered under government as the 
price of protection to another, we open the door to fraud and 
force. Subtle tyranny will cheat us, and brutal tyranny will 
compel us to surrender the rights of humanity. Success will 
embolden the coward in his encroachments ; and timid acqui- 
escence will aggravate the demands of the bold usurper. 

Let our appeal be to the natural laws. Without this foun- 
dation all human laws are alike good or bad, just or unjust, 
as human caprice, whim, or selfishness may declare. Let 
us hold on to our humanity. The social state emanates from 
our proper nature, and must not contradict or wrong it. There 
need be no war between society and the individual man ; and 
tyranny alone declares it. There is fraud or force defeating 
the great law of nature in every case of a surrender of human 
rights under human government. 

Who can rise superior to the laws of the Creator, and dic- 
tate the surrender of a single human right ? A king ? And 
why a king ? He is not the product of nature, but is a mon- 
ster born of ignorance and weak submission. A parliament ? 
What doth a parliament properly represent but the genuine 
rights of humanity ? These rights give birth to the parlia- 
ment, and by blotting them out, it would extinguish itself 
forever. A surrender of human rights ! Who stands up be- 
fore man and Heaven to receive the dreadful sacrifice? A 
m^n r i He dare not as man attempt the rash and wicked 



THE ORIGIN OF HUMAN RIGHTS. 27 

deed. But government — government — may swallow up all 
rights ! And what is government in its very nature, but the 
instrument adopted by mankind for the declaration and de- 
fence of the rights of humanity ? 

This inquiry I will attempt to answer in the ensuing 
chapter. 



CHAPTER II. 

THE TRUE FUNCTION OF GOVERNMENT. 

Government emanates from the moral attributes of man- 
kind. It is a thing of moral necessity, and its power and 
obligation are of a moral kind. In the social state there is 
aggregated a sum of moral feeling, which in some form will 
control the actions of individuals. There is a natural neces- 
sity for government, arising from the disparity which exists 
in the powers and faculties of the different individuals of the 
human family. If you select from among men a single indi- 
vidual distinguished for high intellectual gifts, strong moral 
emotions, and moderate animal desires, and suppose him to 
have cultivated all the powers of his mind to a high degree, 
you have a man who needs no human supervision, in order 
to perform toward his fellow-men all that the wisest and 
best government would ordain. Suppose, then, a nation to 
be constituted of men with the same intellectual and moral 
endowment and culture as himself. Such a people would be 
" a law unto themselves," needing no coercion from without, 
but each individual would be urged by the spontaneous im- 
pulses of his own nature to do right. Society presents us 
with many such characters, who perform the law before it 
coerces, obedient only to the law of their noble natures. But 
kind feelings and good intentions alone will not make up 
such a character. All the endowments must be on a liberal 
scale ; and a considerable degree of intellectual and moral 
culture must be superadded to natural gifts. 



28 HUMAN RIGHTS AND THEIR GUARANTIES. 

"If men," says Vattel,* "were always equally wise, just, 
and equitable, the law of nature would doubtless be sufficient 
for society. But ignorance, the illusions of sell-love, and the 
violence of the passions, too often render these sacred laws 
ineffectual. Thus we see that all well-governed nations 

have perceived the necessity of positive laws Thus is 

the law of nature converted into civil law." 

The regulations of government must be adapted to men as 
they are found to exist — and how then do we find them ? 

A large share of the members composing the social body 
is constituted of persons in infancy and youth — periods in 
human life when the passions are strongest, and the intellec- 
tual and moral forces have the least control over them. The 
process of moral and intellectual culture is not perfected, and 
the advantages of experience and reflection have not yet been 
attained. Here, then, are defective characters placed in the 
midst of society, and their restraint is necessary for the safe- 
ty of its members. 

Again, as we have seen, the menta* constitutions of the 
different adult individuals of the human race vary indefin- 
itely. All are alike, but not equal. Uniformity of kind but 
inequality of powers, seems to have been the rule of Nature 
when she formed the character and appointed the destiny of 
the various members of the human family. It is easy to 
perceive this disparity in the physical proportions, strength, 
and appearance of different individuals. Their intellectual 
and moral powers vary no less, as is established by phreno- 
logical science. The same Divine Hand, which made " one 
star to differ from another star in glory," has made one man 
to differ from another in the strength and activity of the va- 
rious instinctive, moral, and intellectual forces of his mind. 
All men may rise upward from their starting-point, but he 
whom nature has favored most may retain his advantage 
even to the end. Why this intellectual diversity obtains 
among men, it is not our business to inquire. We may as 
well ask why one is beautiful and another ugly — one weak 
and another strong — one tall and another short. It is so — 

* Laws of Nations, p. 134-5. 



THE TRUE FUNCTION OF GOVERNMENT. 29 

let us not quarrel with the fact, but conform to it. Any 
complaint on this subject may be silenced by the reflection, 
that, after all, we are gainers by being men, rather than ani- 
mals — by being noble and powerful in our worst condition, 
rather than low and mean. It is the part of wisdom to ac- 
quiesce in all this, and, with the philosophic bard, agree 
that, " Whatever is, is right!" — applying it, as intended, 
doubtless, to the constitution of nature, and not to the moral 
actions of men. 

Government, then, is necessary in order that there may be 
imposed upon the actions of each individual in society such 
moral restraint as is felt by a man having the best moral and 
intellectual endowment and culture. In other words, gov- 
ernment ought to prescribe such limits to individual action 
as are sanctioned by reason and natural morality. 

The great precept of nature is conceded to be — " that man 
shall pursue his own true and substantial happiness" And 
Blackstone in his Commentaries remarks, " that this law of 
nature, being coeval with mankind, and dictated by God 
himself, is of course superior in obligation to any other. It 
is binding over all the globe, in all countries, and at all 
times : no human laws are of any validity if contrary to 
this — and such of them as are valid, derive all their force 
and all their authority, mediately or immediately, from this 
original." 

Now the man of the highest mental endowment and cul- 
ture naturally perceives and adopts that mode of moral and 
intellectual action which best subserves human happiness. 
•/ His conduct is approved by reason and natural morality. But 
from this rule of action the man with an imperfect organiza- 
tion and culture departs ; and thus mistakes the way to his 
own happiness, and injures the rights and impairs the hap- 
piness of others. Amid the diversities of human character, 
there will be found men whose animal propensities are strong, 
and who are wanting in the restraints and guidance of good 
moral and intellectual endowments. These are not " a law 
unto themselves ;" and if they are indulged with unlimited 
freedom, it is easy to perceive that the rights and happiness 

3* 



30 HUMAN RIGHTS AND THEIR GUARANTIES. 

of others will be endangered, while their own welfare is far 
from being promoted by a licentious gratification of their 
animal instincts. 

Government must supply the restraints which the natures 
of these men fail to impose upon themselves. They must 
be controled by the superior intellectual and moral power of 
the social body. They must be constrained " to pursue their 
own true and substantial happiness." They have failed to 
perceive it, by reason of their defective organization or im- 
perfect culture, and government may restrain them until they 
are trained to a proper pursuit of happiness. 

But, fortunately, this radically defective class of human 
beings is comparatively small ; and the great mass of the 
civilized world are capable of appreciating and acting upon 
the true rule of human happiness : which is, to gratify all 
the desires of mart's nature under the sanction of the moral 
sentiments, enlightened by the powers of the cultivated intel- 
lect. This is the fullest enjoyment of human rights — the 
true exercise of " the largest liberty."* 

A just government will impose no restraint upon man 
which his own moral nature and enlightened intellect do not 
sanction. A good and proper man ought to feel no restraint 
under government, but that of his own enlightened nature. 
The law of government and the law of his own mind ought 
to present the same limit to his actions. Government no 

* Mr. George Lyon, in an able "Essay on the Phrenological Causes of the dif- 
ferent degrees of Liberty enjoyed by different Nations," and which was published 
several years ago in the Edinburgh Phrenological Journal, defines liberty to be 
" the exercise at will of the whole propensities, sentiments, and intellectual faculties, 
in so far as this exercise is not prejudicial to, nor inconsistent with, the legitimate 
exercise of all or any of these faculties in others." 

I quote further from the same Essay : " When the propensities, sentiments, and 
intellectual faculties, are all amply developed, either in an individual or a nation, 
such an individual or nation is susceptible of liberty, because the excesses or 
abuses of the lower propensities are restrained by the possession and internal 
activity of the higher sentiments. Those, on the other hand, in whom the pro- 
pensities greatly pre<k>minate, must have their excesses restrained from without, 
because the internal restraints are extremely deficient ; and in exact proportion 
to that deficiency on the one hand, and to the power and strength of their pro- 
pensities on the other, must be the degree and measure of the external restraint, 
or, in other words, the security of the laws by which they must be governed." 
....'• Perfect liberty, when there is a capacity of enjoying it, is not merely ex- 
emption from tyranny or inordinate government ; nor is it even rational submis- 
sion to rational rule : it is freedom from all external law or government whatso- 
ever ; because external law or government is, in the case supposed, unnecessa- 
ry." .... "When the sentiments and intellect decidedly predominate over the 



THE TRUE FUNCTION OF GOVERNMENT. 31 

more directs him, than he directs the government. The ob- 
ligations of the law and those of humanity are to him one 
and the same. If the laws are just, they are the offspring 
of his moral nature. The obligation of the laws is derived 
from their moral fitness. His submission, then, is not to 
man, but to the Creator ; not to government, but to himself 
— to his better, his superior self. If he make a sacrifice, it 
is upon the altar of his own happiness ; he surrenders no 
right, but the right to do wrong ; he gives up no privilege, 
but the privilege of erring. But he had no right to trans- 
gress a rule of action prescribed by his superior nature to 
effect his happiness. He surrenders no positive right, there- 
fore, when he becomes a citizen of a just and free govern- 
ment. He is yet as free as his own true nature ever allowed 
him to be. Never could he indulge a low desire, without 
reference to the restraints of his own superior nature. — 
Wheresoever he was, he carried his proper humanity with 
him. He never was a mere animal, with the freedom of 
sensual gratification. I have not intended to argue in favor 
of animal freedom, for man never was free in that sense. 
Reason always abides with him ; conscience never deserts 
him ; benevolence is his constant companion ; and noble as- 
pirations to the good, the beautiful, and perfect, ever abound 
in his nature. These great and dreadful restraints are bound 
up with the man ; and be he where he may, they demand 
his obedience. The first murderer heard their awful voice 
in the depths of his soul, after he had slain his brother ; and 
they will for ever cry out against brutal passion and animal 
excesses. The lower propensities may rage and destroy ; 
but for all these things, man's own great and awful nature 
will bring himself to judgment. The tribunal is organized 

propensities, the individual would not require to be subjected to law or restraint 
of any kind. He would be a law unto himself ; he would abstain from every 
crime, and practice eveiy virtue, though penal laws were unknown ; his absti- 
nence from crime being dependant on a far higher authority than that of an en- 
actment of his Majesty, with the advice and consent of the Lords and Commons 
in Parliament assembled." 

" Every man," says Mr. George Combe, " who does not recognise an obligation 
on himself, imposed by the law of God, to act nobly, honorably, and rationally, in 
proportion to his freedom from human tyranny, has not yet formed a conception 
of the first elements of liberty." — Combe's Lectures. By Dr. Boardman. 2d edi- 
tion, page 362. 



32 HUMAN RIGHTS AND THEIR GUARANTIES. 

in his own mind. His loftier nature sits in judgment upon 
his lower, administering restraint upon low desire, and con- 
demning mere sensual gratifications. If the laws do no more 
than this, then do they not unjustly restrain human liberty, 
nor abridge human rights.* 

The laws, then, of a just government, will merely respond 
to the demands of humanity. They will emanate from the 
true wants and moral emotions of the human mind ; they 
will prescribe such limits to human action as man's proper 
nature prescribes to itself; they will deny no gratification 
which it denies not to itself; they will bear the express im- 
age of human character, and have their foundation in the 
nature of man. But they will answer the demands of his 
entire nature. They will sustain its great harmony, cherish 
its hopes, allay its fears, foster its benevolence, and carry 
out its justice. They will subdue the animal and exalt the 
man. They will point the high road to happiness, and close 
the gate of groveling instinct and base desire. They will 
prescribe that as the rule of human conduct which the en- 
lightened intellect and high moral endowment write down 
in the inner man — sanctioning what these sanction, and for- 
bidding what these forbid. The laws will thus be in perfect 
harmony with man's nature, and the statute-book become the 
enlightened expression of his will. It may then be truly said 
that the citizen, " although loyal, would still be free — obe- 
dient, and yet independent." 

There is, then, a fundamental law, the law of man's mental 

* "If a law," says Mr. Lyon, " should exist in any country restraining the inter- 
marriage of one class of its citizens with another, such as obtained in ancient 
Rome in regard to the plebeians and patricians, such a law would outrage ama- 
tiveness, adhesiveness, self-esteem, love of approbation, conscientiousness, &c. ; 
and to this extent, such a people would not be free."..*. ._" If all places of trust, 
power, and influence, were confined to a few, as in Rome, where a plebeian could 
not aspire to the honors of Consulship, such an order of things would be a re- 
straint upon self-esteem, love of approbation, &c. ; and here, also, the people 

would not be free." " Again : if the law should interfere with or prohibit the 

free accumulation of wealth, such as the Agrarian law of Rome, this would im- 
pose an arbitrary restraint on acquisitiveness and love of approbation ; and would, 

of consequence, be inconsistent with liberty." " And if such a law should 

exist as obtains in Hindostan, and more or less in all Catholic countries, where 
the great mass of the people are interdicted from perusing their sacred writings, 
such a law would be a restraint on the knowing and reflecting faculties and higher 
sentiments ; and those nations who should submit to it could not be considered 
free, or, at least, completely so." 



THE TRUE FUNCTION OF GOVERNMENT. 33 

constitution, to which the framework of government and all 
human legislation must conform. The citizen under govern- 
ment has a right to look heyond the written constitution, to 
that higher, nobler, and diviner work, the constitution of man. 
Herein lies his protection against tyranny ; and he is bound 
to seek it, lest by rendering blind fealty to government, he 
may become a traitor to humanity ; for u resistance to Ty- 
rants is obedience to God." 

Written constitutions are often regarded with as profound 
reverence, as if they were the offspring of divine inspiration. 
The people are taught that they are sacred and inviolable, 
and are exhorted to bring all laws to their high test, and to 
note every departure from their principles. This is well, if 
those constitutions are well ; otherwise, not. So that the first 
exhortation should be to bring the written constitution to the 
test of the natural laws, to compare the constitution of gov- 
ernment with the constitution of man, and see whether the 
former is founded upon the latter. The charter of man's 
rights and liberties is stamped upon his nature by the Sover- 
eign of the universe ; and to this great charter man can never 
surrender the right of appeal, without being a traitor to him- 
self, and to the Creator's laws. 

What, then, is the fundamental right of man as a member 
of civil society ? I answer — The right to adapt government 
to the constitution of his nature. 

Government must result from the consent of those who 
are to be bound by its laws. It cannot be thrust upon a peo- 
ple withholding their consent. It is a matter of public and 
general concern. It flows from a general want, affects the 
general happiness, and all are alike concerned in its just adap- 
tation to the wants and weal of the community. There will 
be a ready and cheerful acquiescence in wise and just legis- 
lation. If the laws are just and equitable, mankind would 
do as much violence to their natures as to the laws, in rebel- 
ling against them. A just government cannot be called a 
<{ necessary evil ;" it is a necessary good. A good govern- 
ment is as precious to all well-constituted minds, as a good 
nature, or virtue. Its laws are written virtue. Its aims are 



34 HUMAN RIGHTS AND THEIR GUARANTIES. 

those of truth, justice, and excellence. A vast majority of 
the Anglo-Saxon race consent to such a government as a mat- 
ter of course — and they are strongly inclined to rebel against 
any other. This race of men is beyond all doubt capable of 
living harmoniously under a free government ; and so is any 
other people, in the great majority of whom there is a de- 
cided predominance of the intellectual and moral endowments 
over the animal instincts. And when the consent of such a 
people is withheld from their institutions of government, de- 
pend upon it, nature is rebelling against tyranny — and the 
foremost in the resort to force, are the noblest and best en- 
dowed of the rebels. Washington violated his allegiance to 
the British King, to do homage and fealty to the King of 
Heaven ; but he was as incapable of rebelling against a just 
and free government, as he was of submitting to an oppres- 
sive and unjust one. 

A just government, then, proceeds from the express dicta- 
tion or consent of the governed. It is the offspring and crea- 
ture of the moral and intellectual nature of man. It has the 
consent of all well-constituted minds ; and we have seen that 
in our race the number of minds incapable of appreciating 
and acquiescing in such a government is comparatively small 
— perhaps not one among a hundred of our people. 

The States of the American Union have acknowledged 
these principles in the adoption of their several constitutions. 
They have asserted that the people are the source of all le- 
gitimate authority and power, and that government derives 
its authority only from the consent of the governed. They 
have declared that the true aim of government is to secure 
the happiness of those living under its influence ; and that 
when it fails to accomplish this object, its authority ceases, 
and those concerned have a right to throw off their allegiance, 
and to organize a new government in harmony with human 
nature and subservient to human wants ; that allegiance is 
only due to a just and free government, and that a true and 
faithful man, in view of the greatness of his own nature, and 
the importance of his happiness, can consent to no other. — 
The American people, therefore, have declared the true foun- 



THE TRITE FUNCTION OF GOVERNMENT. 35 

dation and scope of government. It remains to be seen 
whether American legislation has followed or departed from 
the great design of our political institutions. 

The next great requirement of humanity is — That the laws 
shall be general in their scope and application, equal and im- 
partial to alL 

If the aim of all mankind be happiness, and if that depend 
upon the same rule of intellectual and moral action, then the 
rule prescribing or limiting that course of action must be the 
same for all men. Hence the demand of all the enlightened 
world, that the laws shall acknowledge the equality of all 
men ; not the equality of their physical, moral, or intellectual 
powers, but the universality and equality of human rights. — 
The doctrine of human equality is not understood by all who 
assert it. Legal equality exists where the laws create no 
factitious greatness, confer no partial privileges, and deny no 
natural rights. So that if the laws be adapted to the consti- 
tution of the human mind, and apply to all men alike, or are 
just and general, affecting all men alike, then all men are 
equally regarded, protected, and punished by those laws, and 
legal equality is established. But the inequalities arising from 
the disparities of men's physical and mental constitutions 
will still exist. One man will have the advantage of another 
still ; but he will owe it to the laws of 'his organization, and 
not to the laws of man. So far as human legislation has 
gone, it has left him as it found him — strong, if he were 
strong before, and weak, if he were weak. It has guaran- 
tied the freedom of his nature, not the powers of it. It has 
kept his course free from human obstruction. It has con- 
ferred neither rights, nor privileges, nor powers — but pro- 
tected all, and all alike. It is not the fault of the law if he 
is still weak, as it is not the boast of the law, if he is now 
strong. It made him neither. It took him as he was, and 
kept him as it found him. The most perfect human laws 
can claim no higher merit, than that they have followed na- 
ture ; not having conferred the rights of humanity, but guar- 
antied and defended them ; not having bestowed powers upon 
any man, but having kept him free from obstruction in the 



36 HUMAN RIGHTS AND THEIR GUARANTIES. 

exercise of his natural faculties. The boast of the laws 
should be, that they have not obstructed the true course of 
humanity ; that they have neither advanced nor retarded any 
man ; but that they let him alone to work out his happiness 
in the exercise of his own true nature, according to its beau- 
tiful harmonies, and to attain happiness in accordance with 
the laws of his mind. Mankind demand to be left to them- 
selves. 1 speak of the well-constituted, the great majority 
of civilized men. 

Government has nothing to bestow upon any man ; it can 
only serve to protect him in all that he hath. He comes into 
society with the capital which God has given him, and he 
demands " free trade." It is not the work of government to 
provide capital for any man's business in social life, nor to 
endorse for him if he has not wherewithal to get on without 
its endorsement. It must protect him only in what he hath, 
be it much or little. The response of just and equal laws to 
the petitions of men under their protection is uniform in alJ 
cases. 

If a special privilege is sought for, it cannot be bestowed $ 
for if it be granted, a favor is given to one or a few at the 
expense of all the rest ; and thus one man or set of men is 
benefited by contributions from the rights of all. A law ef- 
fecting this would abuse the office of all law ; which cannot 
derogate from the rights of any, but only protects the rights 
of all. Where, then, doth Government derive the privileges 
which it bestows upon its favorites ? I answer: by an usurpa- 
tion of the rights of ail. A just government will confer 
no special privileges ; its powers will be exerted only in the 
vindication and defence of human rights. Privilege conferred 
upon one man implies a derogation from the rights of others ; 
and the office of government is protection alone. So that 
right must forever defeat privilege, and man, after all, must 
be left to the resources of his own nature for the attainment 
of happiness. 

Neither has Government, rightfully, any honors to bestow, 
except upon man as such. It honors his rights. Nature is 
the fountain of honor and source of true greatness- If great- 



THE TRUE FUNCTION OF GOVERNMENT. 37 

ness come not from natural endowment or brilliant achieve- 
ment, Government cannot "thrust" it upon any man. It 
can no more confer the title to, than the elements of great- 
ness. Man-making is not the business of Government. It 
must regard man as a rational moral being ; take him as 
such, treat him as such, and allow him to live and die as a 
man. He derives his nature and his nomenclature from 
God ; and until Government has power to change his nature, 
it ought not to be ambitious to change his name. 

If one man be a king, all are kings ; if one be a lord, all 
are lords ; for, if the title exist of common or natural right, 
then all men are heirs to it. But if it be the arbitrary crea- 
tion of Government, and be applied only to a select few, 
then, if there be any good or advantage in the thing, it is be- 
stowed at the expense of all who have it not, and is an of- 
fence against their rights. Government, then, can bestow 
neither privileges nor titles, without violating the sanctity of 
human rights, whose protection is its only proper function. — 
Accordingly, the American people have ordained that no title 
of nobility shall be conferred by Government. In theory, at 
least, we look to Nature to present us with the great and no- 
ble of mankind ; and we yield to them the places which she 
has destined them to fill.* 

But there are elements in the human character which, if 
permitted to operate without the wholesome restraint of the 
superior sentiments, will adopt a substitute for arbitrary 
titles, and institute unnatural disparities in the social state. 
Excessive pride and ill-regulated love of approbation, asso- 
ciated with the acquisitive instinct, will conspire to grasp at 
wealth and power through the means of legislation, and thus 
obtain all the solid advantages of an artificial nobility, with- 
out incurring the odium of its name. Crafty men will be- 
siege the legislative power, and, resorting to various plausi- 

* There is a fear that a love of titles is gaining ground in this country; but I 
think there is no foundation for alarm. The poet has only slightly caricatured 
the Yankee character, who described him as one — 

" who would kiss a queen till he raised a blister, 

With his arm round her neck and his old felt hat on- 
Who'd address a king by the title of ' mister,' 
And ask him the price of the throne he sat on ?'' 

4 



38 HUMAN RIGHTS AND THEIR GUARANTIES. 

ble pretences of public benefit, procure the passage of partial 
laws, through which they are enabled to realize extraordin- 
ary gains from rich monopolies and chartered privileges. The 
legislature professes to act only for the general interests of 
the public body. It must appear, therefore, that the commu- 
nity are to derive great benefit from the particular law whose 
enactment is pressed by the special application of a few indi- 
viduals. The applicants may seek a law permitting them to 
unite their wealth for the purpose of advancing some partic- 
ular art or science. Suppose it to be Chemistry. Now, the 
public feel at once an interest in this subject. Chemical 
analysis, and the application of its truths, are of importance 
to all men in every-day life. They who extend their re- 
searches into this subject, and bring new truths to light, are 
public benefactors. Well, the applicants are willing to take 
a charter from the Government, and to devote a part of their 
wealth to the investigation of this great branch of natural 
science. They offer to become public benefactors. The case 
is clear, and apparently the public are to reap a decided ad- 
vantage without the least outlay. This is modestly insinu- 
ated by the applicants, and the ingenuous legislator feels the 
force of the hint. Nay, perhaps he was a little astonished 
at the outset to find sensible men asking the privilege of doing 
that which nobody wished to prevent, but which everybody 
rather desired to have done. What, then, can he do in re- 
turn for these magnanimous philanthropists and charter- 
seeking patriots ? They must not leave the legislative halls 
as merely successful applicants for the privilege of confer- 
ring an unmixed benefit upon the public. Such virtue must 
have its due reward ; and as these gentlemen have no sort of 
objection to having it mentioned in their charter that they 
may have the privilege of banking for fifty years, it is grant- 
ed to them, as a poor compensation for the devotion of a part 
of their capital to the cause of science. And so springs up 
a monopoly of science and banking ! The earth is now ex- 
plored for minerals, and the haunts of men for credit. Chem- 
istry and credit go hand and hand a while, till at length the 
scientific portion of the enterprise becomes neglected by the 



THE TRUE FUNCTION OF GOVERNMENT. I 39 

corporators. They have not the same affinity for science as 
at first ; their patriotism goes off in a gaseous state, and they 
adhere to the solids of their system ! They will let your 
Franklins and your Davys achieve the honors of discovery, 
while they, as stockholders and directors of a " Chemical 
Bank," confine all their scientific transactions to the precious 
metals, whose nature and value every body knows and fully 
appreciates ! 

A great city demands pure and wholesome water for the 
use and comfort of its inhabitants ; and there stand in the 
lobby of the legislature benevolent gentlemen, whose phi- 
lanthropy knows no bounds, and who are willing to devote 
their entire wealth to this most beneficent purpose. The 
halls of legislation resound with their praises — the enterprize 
meets with nothing but favor, and a perpetual charter is 
granted to the individuals seeking it. But that so great phi- 
lanthropy should not be left to its own reward, they also re- 
ceive from the legislature, as a poor equivalent, the privilege 
of banking. Forthwith the business commences, and the 
crystal stream of pure and unadulterated water, which 
glistens at yonder fountain, is to be carried to every man's 
door. The genius of Health smiles upon the endeavor, and 
the budding rose of beauty shall bathe and expand into full 
and sweet bloom under these purifying influences ! 

Alas ! it is not so ! The maid at the fountain starts back 
from her pail, for the water flows like mud ! And we are 
told that the " pure and wholesome water" of the Manhat- 
tan Company of the city of New- York has been repeatedly 
offered to intelligent horses, by whom it was " most respect- 
fully declined." 

In these and like cases of special privilege conferred upon 
the applicants for legislative favor, with what motive are 
the charters obtained ? Is it for the public advantage or pri- 
vate gain ? It does not require much, sagacity to perceive 
that, under cover of pretended public benefit, there is cloaked 
the clearest selfishness. Private advantage is the primary 
aim of the corporators; and if the community can be made 
to believe itself benefited, whether the fact be so or not, it 



40 HTTMAN RIGHTS AND THEIR GUARANTIES. 

is etiough for their purpose. I do not deny that they are wil- 
ling that the public should be benefited incidentally : but the 
chief benefit the corporators design to retain to themselves. It 
is nothing to them, if they can make large profits, whether 
the public partake at all of the benefit ; but if they cannot 
make gains unless the community require some benefit from 
their transactions, then they are willing to confer a public 
benefit in order the better to promote their own selfish inter- 
ests. I would speak reverently enough of such public bene- 
factors. Perhaps the community are sometimes benefited 
by their operations. But the division of benefits between 
these corporators and the people is about as equitable as that 
court of justice which, in distributing the oyster between 
contending claimants, takes the animal to itself, and liber- 
ally bestows upon the litigants — the shells. 

We have before seen that the Legislature had no favors 
to bestow upon any individual ; that government could not 
collect a fountain of privileges without an abridgement of 
the rights of all ; that the true function of government is the 
protection of rights ; and that this office, properly performed, 
defeats any grant of special privileges. 

What position, then, ought a just government to take in 
reference to the grant of charters, conferring special privi- 
leges ? I answer — the ground of general legislation, and con' 
sequently the denial of every special application. 

The evils of partial legislation — of the grant of monopo- 
lies — of chartered and exclusive privileges — cannot be enu- 
merated within our present space ; nor shall I attempt to set 
them all down here, But I invite the reader to examine the 
statute-books of any of the States of the Union, and to note 
what passes at every legislative session. In the State of 
New- York the laws of each session fill a large octavo vol- 
ume ; and this volume is chiefly composed of partial laws — 
laws not made for all, but for a few recipients of legislative 
justice or favor. 

By some of these laws the claims of private individuals 
against the State are allowed. Now why should each claim 
of this character require a special law for its adjustment? 



THE TRUE FUNCTION OF GOVERNMENT. 41 

Because we brought from England with us a law maxim, 
denying to the subject the right of suing the sovereign. The 
King is presumed to be incapable of denying a just claim of 
the subject ; and if he will only just mention it to him by an 
humble petition, and present it to him on bended knee, why, 
he will get his money from the royal purse. In other words, 
the King is willing to be dunned, but will not be sued. We 
have adopted this delicate sentiment, and driven all claim- 
ants against the State to become legislative duns. Because 
a sovereign King cannot be called to answer in a tribunal, 
presumed to be his subservient creature, and which has no 
power to coerce him, therefore a citizen of a Republic cannot 
resort to a court of justice and establish his claim against the 
State. A citizen, therefore, having a just claim, must peti- 
tion the Legislature for redress, and must retain some agent 
to wait upon legislative justice. This latter personage en- 
lightens the representatives of the people by his private con- 
versations, regales them with his wit, and conciliates them 
with dinners and wine, and other "creature comforts."* He 
succeeds. 

One claim is disposed of, but many remain, some of which 
are allowed, some are looked into and forgotten, and others 
are not examined at all. The persevering and bold claimant, 
having many friends and acquaintances, may get more than 
he deserves; while the modest and friendless claimant may 
get much less than he deserves, or nothing at all. This 
whole procedure is wrong, and arises from the stupid aping 
of institutions which have no analogy to our own. If the 

* An action was tried some years ago in the Court of Common Pleas of the 
City of New- York, founded upon the claim of an individual for services and ex* 
penses devoted to the procurement of a law from the Legislature of the State of 
New-Jersey, incorporating a private company for some purpose, which I do not 
now recollect. The plaintiff's claim consisted of various items of wine, suppers, 
dinners, and other comforts, provided by him in the course of lobbying the bill 
through that Legislature, together with a round sum for his services in the pre- 
mises. He alleged that the defendant, a leading member of the corporation thus 
created, had agreed, upon the procurement of the charter, to pay him for his 
services a large sum, and also these expenses. The suit was defended on the 
ground that these services were contrary to public policy and sound morality, 
and this defence was successful. And yet scarcely a special law passes a legis- 
lative body in this country, especially if it confer any valuable special privilege, 
but what owes its passage to means which this Court justly pronounced to be 
against public morality. So [great is the evil necessarily incident to special 
legislation. 

4 # 



42 HUMAN RIGHTS AND THEIR GUARANTIES. 

State owe a citizen, it ought to fay him. If it does not owe 
him, it ought not to give him any thing. If it owes and will 
not pay, the citizen ought to he enabled to sue the State, and, 
upon a recovery, ought to be paid out of the public treasury. 
The State condescends to sue the citizen in our courts — why 
not condescend a little further, and be sued in them? 

This change of our system of disposing of private claims 
against the State would be a hard blow at the " lobby," and 
might diminish the annual harvest of its honorable members ; 
but then it would also prevent the evils, delay, expense, and 
injustice arising from this branch of special legislation. All 
these private claims would be determined in our courts, upon 
the same legal principles as prevail between private persons, 
and with a great avoidance of expense and delay. This 
would prevent another great evil in regard to contracts for 
making the public works. These contracts are given to the 
lowest bidder, who oftentimes agrees to do the work for a 
far less sum than he can afford, and relies upon adjusting his 
loss, and upon getting profits also, by importuning the Legis- 
lature with his claims. He drives the fair contractor from 
the work ; busies himself upon his job in vacation, and works 
at " lobbying " during the legislative term. The public pays 
for the State works at most disastrous rates under this system 
of management. The State first pays the price agreed, next 
the price which the " lobby " have sanctioned, and then 
must be added to these the expense of legislating upon the 
claim, which, together, may amount to three times more 
than some fair contractor would have exacted for the same 
work. 

The remedy consists in the enactment of a general law, 
which shall afford to every citizen the same measure of re- 
dress against the State, which the State ordains between its 
citizens ; and the denial to the legislature of the power of 
allowing any claim to a private citizen. Let justice be done 
in these cases by the courts. 

Another large class of special laws arises from the incor- 
porating of cities and villages, the laying out of highways, 
incorporating academies, &c. All that is proper to effect in 



THE TRUE FUNCTION OF GOVERNMENT, 43 

these cases, can be done by general laws. Let, for instance, 
a general law declare that a village containing a certain num- 
ber of inhabitants may become a body politic and corporate, 
by the consent of a certain majority of its inhabitants who 
are legal voters, to be given in a prescribed manner, with 
public notice, &c, and filed in some proper office of record — 
and that when so incorporated, certain powers, well defined 
by the general law, shall pertain to this municipal corporation. 

But there is one branch of special legislation to which I 
wish more particularly to invite attention ; and I would in- 
quire why such legislation is necessary in reference to the 
business of banking ? If the legislature can grant a special 
charter for banking upon safe principles to any particular 
class of men, why can it not make a general law prescribing 
the mode in which anybody can enter into this business ? If 
ten or twenty good citizens, under certain restrictions and 
limitations, can be safely intrusted by a special charter to 
carry on this business, why cannot all good citizens be in- 
trusted with the same power ? If the public are safe in one 
case, would they not be in the other ? If the business were 
thrown open to all men on the same terms, and under the 
same restrictions, would any more eventually embark in it 
than the public wants required ? Would not individual sa- 
gacity, in this as in all other cases, be found to respond to the 
demands of the community far better than legislative wis- 
dom ? Would not capital be aggregated at such places as 
the public wants required? If so, what is the objection to 
general legislation on this subject ? I do not now speak of 
the merits of banking or paper money, but the evils of special 
legislation. 

If banking be a legitimate mode of making gain, then all 
men who can do so have an equal right to embark in it. If 
it be an improper mode of acquiring gain, then it ought to be 
prohibited to all alike. If it can be allowed with safety to 
any class of men who are able to take stock under a special 
charter, then it can be safely allowed to all men who are able 
to take stock under a general law. If banking, as generally 
exercised in this country, is to be continued, the evil to be 



44 HUMAN RIGHTS AND THEIH GUARANTIES. 

feared is that it may be allowed to be conducted in a wrong 
way, and upon false principles ; and this evil principle may 
creep into a special charter more readily than into a general 
law. If you can shut it out from a special 'charter in oppo- 
sition to the selfish interests of the corporators, how much 
more easily can you not exclude it from a general law ? If 
you allow banking, let it be free, control it by general laws, 
and thus affirm that what is good and proper for one man or 
set of men is good and proper for all. But it is objected that 
there will be an excess of banking. That will correct itself, 
as does all overdoing of trade and business. In the long 
run, so much will be done as shall be expedient, and no 
more, if the general law be wisely framed and properly 
guarded.* 

If the principle of general legislation should be adopted in 
this country, we should be struck with its purifying influ- 
ences ; the effect would be instantaneous in annihilating " the 
lobby," or " third house," that embodiment of selfishness and 
gross corruption. The halls of legislation would be cleansed, 
and the representatives of the people would breathe a purer 
and a freer atmosphere. All " log-rolling," as it is termed, 
would cease. There would be no bargaining between the 
members of the legislature, as thus — " Do you vote for my 
bill, and I will vote for yours" — no one would have a bill of 
his own to care for. The whole people would be concerned 
in every legislative act, and the laws would assume their na- 
tive purity and majesty. 

General legislation requires higher intellectual and moral 
powers in the representatives of the people. A man of very 

* The Westminster Review for January, 1841, contains a very able examina- 
tion of Currency and Banking, in which the free principle is strongly advocated, 
and which concludes as follows : 

" To establish free-trade in banking in London, would require the sanction of 
the legislature ; but it may be questioned whether the nation has yet undergone 
a sufficient quantity of suffering to induce our statesmen to adopt so simple a 
remedy. To this, however, they will come at last. ' Wisdom,' says Mr. Loyd, ' is 
best learned in the school of adversity.' When a few more theories have been 
tried — a few more ' pressures ' have been experienced — a few millions more of 
opulent families have been reduced to beggary, and our union work-houses are 
thronged with starving artisans — then we may discover that all our attempts to 
regulate the currency have been productive of mischief, and toe shall be willing to 
let the currency regulate itself. " 



THE TEUE FUNCTION OF GOVERNMENT. 45 

limited capacity may present and carry forward a law promo- 
tive of local or partial interests ; but just and enlightened 
legislation requires the highest endowments of talent and 
virtue. The legislator properly represents the State, the 
whole people — nay, humanity itself. He is the guardian of 
human rights, not the promoter of selfish interests. He should 
be moved from within, not from without ; and if he consid- 
ered only the justice of general laws, he would act under the 
impulses of his enlightened sentiments alone. No bribe 
would tempt his integrity, and his only reward would be the 
reward of virtue. What dignity, what moral grandeur in his 
work ! He toils now for humanity. Not for particular men, 
but for mankind he labors ; not for the present, but for all 
time he rears the structure of human government, and adorns 
the temple of justice. He becomes the student of Nature, 
and reverences her laws. He proclaims the Rights of Man, 
asserts their sacred inviolability, and keeps the high course of 
humanity free from obstruction. He is the friend of all 
Rights, and the foe of all Privileges. 

There is a moral necessity for the adoption of this principle 
of general legislation. A republic cannot long endure without 
it. Public virtue will perish in the halls of special legislation. 
The laws must cease to confer privilege, and become the 
bulwark of human rights. They must be directed to the 
restraint of vice, and not to the restraint of business. All 
laws which have not natural morality for their foundation 
are the tricks of ambition or avarice, to defraud mankind. 

The Sovereign of the Universe has legislated for man ; has 
stamped His laws upon his moral constitution ; and, thus 
provided, man enters the social state, to pursue happiness in 
obedience to the laws of his organization, needing nothing 
from human legislation but the protection of his natural Rights. 



46 HUMAN EIGHTS AND THEIB GUARANTIES. 



CHAPTER III. 

OF THE CONSTITUTION OF GOVERNMENT. 

The power of Government must reside somewhere, since 
we have seen that there is a clear moral necessity for its ex- 
ercise. A few men in society are violently at war with the 
rights of others ; and a larger class of men, when under oc- 
casional excitement of passion or interest, are tempted to in- 
fringe upon the rights of mankind. Nevertheless, almost all 
civilized men are capable of appreciating the rules of right, 
and when free from this occasional excitement are competent 
to decide upon rules and regulations for the government of 
men in the social state. The enactment and execution of 
these rules constitute the functions of Civil Government. 
Where, then, does this power primarily reside? I answer, 
that it pertains to those persons who are interested in its ex- 
ercise, whose rights are the objects of its protection, and 
who possess the requisite moral endowment and intelligence 
to ordain and execute the law of right, or, in other words, 
the qualified citizens. The American Constitutions uniform- 
ly declare that the people are the source of all political 
power. To them, in their collective or corporate- capacity, 
pertains the office of government, and the direct and imme- 
diate exercise of its moral force. It is both their right and 
duty to discharge this high moral function in their primary 
assemblies wherever it is practicable ; and when they seem 
to relinquish the power of governing, by delegating to State 
Officers the exercise of certain public functions, they do not 
renounce their sovereignty, but are still masters of the State, 
retiring from the direct and immediate control of its affairs 
from motives of convenience only. 

Wherever the people retain the power of Government for 
their direct and immediate exercise, there is no necessity for 



OF THE CONSTITUTION OF GOVERNMENT. 47 

a written Constitution. Their aggregate intelligence and 
moral sense furnish their rule of action. But the power thus 
wielded is that of a pure Democracy, which must, for con- 
venience, he confined to a small territory, such as that of a 
village or country town, where all the inhabitants are capa- 
ble of assembling together as often as the exercise of a pub- 
lic function is required. But where a large territory presents 
an obstacle to this assembling of the people, the functions of 
pure Democracy cease, and the people delegate to their re- 
presentatives such of the powers of Government as they can- 
not conveniently discharge in person.* They appoint agents 
like other principals — and prudence dictates that they should 
be rendered as secure as possible from the malconduct of 
their subordinates. Hence there at once arises the necessity 
for a written Constitution. The power of government, 
which is inherent in the people, is now to be imparted to 
their agents ; and because the people ought to retain what- 
ever power they can directly exercise, and ought in no in- 
stance to substitute an agent where they can act themselves ; 
and because they ought, in every case, to have the appointment 
of their agents by a prescribed mode, which is not susceptible 
of doubt or denial ; and because the tenure of office, and the 
responsibility of its incumbents, ought to be regulated by a 
fundamental law ; and because the functions of government are 
diverse in their character and ought to be distributed among 
different officers, such as Executive, Legislative and Judicial, 
to the end "that the Government may be one of laws and 
not of men ;" and because, for the safety of the people and 
the security of rights, the powers delegated to represent- 
atives ought to be limited and defined, so that the agent 
may know his office and the principal be secure from his 

* See Bancroft's History of the TJ, S., vol. I., p. 348 :— " The frame of civil gov- 
ernment in the old (Plymouth) Colony, was of the utmost simplicity. A Governor 
was chosen by general suffrage ; whose power, always subordinate to the general 
will, was, at the desire of Bradford, specially restricted by a Council of five, and 
afterwards of seven Assistants. In the Council the Governor had but a double vote. 
For more than eighteen years the whole body of the male inhabitants constituted 
the Legislature ; the State was governed like our towns, as a strict Democracy : 
and the people were frequently convened to decide on Executive not less than 
on Judicial questions. At length the increase of population and its diffusion over 
a wide territory, led to the introduction of the representative system, and each 
town sent its committee to the General Court." 



48 HUMAN EIGHTS AND THEIR GUARANTIES. 

misdeeds ; and because it is possible that men m office may 
grow fond of power and abuse it — that the Judge may at- 
tempt to legislate, that the legislator may over do his work, 
that the ministerial officer may attempt to judge and legis- 
late, and that delegates and agents may subserve their pri- 
vate ends while in the employment of their masters ; and 
because the legislative power of a State, when committed 
to delegates, ought not to be omnipotent, but limited and 
defined by such provisions and exceptions conservative of 
rights and liberty as wise men know to be salutary restraints 
upon legislative power ; therefore, it is indispensably neces- 
sary that the people should delegate the powers of Govern- 
ment by a written Constitution — containing the grant, dis- 
tribution and limitation of the various public functions, with 
such safe-guards as their experience from time to time may 
suggest. 

This, then, is the office of a written Constitution — to de- 
legate to various public functionaries such of the powers of 
Government as the people do not intend to exercise them- 
selves — to classify these powers according to their nature, 
and to commit them to separate agents — to provide for the 
choice of these agents by the people — to ascertain, limit and 
define the extent of the authority thus delegated — and to re- 
serve to the people their sovereignty over all things not ex- 
pressly committed to the care of their representatives. 

But after such a Constitution shall be adopted by a people, 
they retain the supreme power of the State. The relation 
created between them and their representatives is that of 
principal and agent ; and the former still exists, although 
the latter may appear to be invested with full powers of 
sovereignty ; and the people, in virtue of that sovereignty 
which is inherent in them, and of which they are incapable 
of being divested, either by consent or by force, may revoke 
the power which they have conferred upon their delegates, 
and, by the substitution of a different Constitution may cre- 
ate new agents, clothe them w ith other powers, and place 
them in new and different relations to their principals. The 
supreme power of State, therefore, always resides in the 



OF THE CONSTITUTION OF GOVERNMENT. 49 

people, and no Constitution or instrument containing a dele- 
gation of the powers of Government can be regarded as ir- 
revocable, or as divesting the people, the true sovereign, of 
supreme control in State affairs. 

A Constitution is no more a contract than a common law 
power of attorney, which vests no personal interest* in the 
agent. It is an appointment, an authority, merely during 
the pleasure of the principal. If the people of a free State 
should express their designs, their hopes and fears, when 
they adopt their Constitution, they would utter something 
of this sort: "We have a high moral trust to execute in the 
conservation of our rights and liberties, which can only be 
effected by ordaining and executing a code of laws founded 
upon natural justice; we cannot personally attend to this 
business — in some cases it is inconvenient, and in others im- 
possible ; we are compelled, therefore, in so far as we cannot 
attend to the work of government in person, to entrust it to 
agents ; but how much power we ought to entrust to them, 
and how we should -guard and secure the proper exercise 
of the functions of Government, we have not had ex- 
perience enough to determine with accuracy; nor do we 
know how far we can rely upon the fidelity of agents in this 
business ; the whole thing is an experiment — but a great and 
solemn experiment, involving an observance of the moral 
laws of the Divine Being, and the security of the rights and 
happiness of His creatures. With doubt and hesitation we 
commit this power to our agents, throwing around it such 
safeguards as our acquaintance with human infirmity has 
suggested. We may find occasion for multiplying and 
strengthening these safeguards, and for remodeling the in- 
strument containing the delegation of power ; but for the 
present, and until experience shall have made us wiser and 
we shall otherwise direct, we stand upon the present grant 
of power to our agents, and authorise them to wield it ac- 
cording to our declared intention. We will dismiss them 
if they prove unfaithful ; and by our experience of the ma- 
chinery of Government, which we now set in motion, we 
may be able to adopt a wiser plan if this shall not answer 
the requirements of humanity." 5 



50 HUMAN RIGHTS AND THEIR GUARANTIES. 

I 

Is not this the fair import of a Constitution, viewed as 
an instrument by which the people delegate the powers of 
Government to their representatives ; and if so, how can it 
be claimed that such powers are irrevocable ? 

Moreover, a strict consideration of the function of Govern- 
ment, divests it of all authority except to insure the protec- 
tion of rights. This reduces it to the mere exercise of moral 
force, and renders it purely a moral concern. What is just? 
— this is the ever-recurring question of the State. Is it right ? 
— this will forever follow after its decisions. These involve 
the lives, the happiness, and the well-being of every citizen, 
and hence the highest moral responsibility to the laws of the 
Creator. I have regarded Government as an attempt by 
mankind to conform to the moral laws of the Universe, and 
the Legislator as the mere "minister and interpreter" of 
the natural laws which control the moral actions of men. 

If I am correct in this, then society cannot bind itself to a 
form of government which in any respect does violence to 
the natural laws without offence to the Supreme Ruler of 
the Universe. And even although a Constitution were to be 
regarded as a contract, yet the moment it is found to work a 
wrong which can be remedied by a new instrument, that 
moment it becomes revocable as immoral and mischievous. 
A contract cannot be upheld which subserves immoral pur- 
poses, and a Constitution would fall for the same reason. 
However, I perceive no contract in a Constitution, but rather 
a mere power, which is good until revoked, and which may 
be revoked or amended at the pleasure of the body which 
granted it. 

I speak of a contract as between the body politic and the 
agents of the State ; and also of a contract as between the 
citizens themselves, which is to bind them without the con- 
tinued consent of the majority. There is an obligation on 
the part of every citizen to obey the present Constitution until 
the majority of the people shall adopt another. 

This is the American doctrine respecting the Constitution 
of Government, and it has been steadily persisted in from 
the Declaration of Independence to the present time. That 



OF THE CONSTITUTION OF GOVERNMENT. 51 

Declaration asserts broadly the supremacy of the popular 
will, and that whenever any Government fails to answer its 
proper design, it is the right of the people to alter or abolish 
it, and to institute another. The various States of the Fed- 
eral Union have asserted the same thing in their respective 
Constitutions, and have practiced upon that principle by re- 
modeling at pleasure their fundamental laws ; and I believe 
no enlightened American at present doubts this supreme 
power of the people over the Constitution of Government. 

But a difficulty has arisen in the minds of some persons 
as to the power of the people over a Constitution in which 
there is provided a mode of amendment by the Legislature — 
no other mode of amendment being forbidden. 

It is contended that such a Constitution can only be amend- 
ed in the mode pointed out by the instrument itself — that the 
people, by adopting that mode, have necessarily precluded 
any other, and that it is nothing short of revolution to call a 
Convention in such a case to remodel the fundamental law of 
the State. 

This difficulty can scarcely be considered serious in the 
case supposed, since the Constitution does not expressly nega- 
tive any other mode of amendment than the one pointed out 
by that instrument. If the supreme power of the State re- 
side in the people, and their original right to make and amend 
their fundamental laws be conceded, as it is by all the Ame- 
rican Constitutions, then the objector must first annihilate 
this supreme power which is inherent in the people, before he 
can have any ground to stand upon. This he may attempt, 
perhaps, by showing a case where the people have adopted a 
clause in their Constitution prohibiting any amendment ex- 
cept in a mode directed by that instrument. This brings us 
back to the old question, whether a people can bind them- 
selves irrevocably to any form of Government or mode of ad- 
ministration ? I have supposed it impossible — because the 
sovereign power of the State cannot be bound in such a man- 
ner as to diminish its supremacy ; and because the moral 
laws of the Creator interfere to annul the obligation whenever 
the majority of the people perceive that it works injustice. 



52 HUMAN RIGHTS AND THEIR GUARANTIES. 

As regards the administration of the moral laws, a people can 
only oblige themselves to walk by such light as they may en- 
joy for the time being. The moment the majority perceive a 
better light, it is their duty to direct their course by it, and 
their poor covenant, written in ignorance and darkness to 
abide by error, must fall to the ground. " No engagement," 
says Vattel, "can oblige, or even authorize, a man to violate 
the laws of nature." These laws are no less moral than 
physical, and are as obligatory upon a State as upon indi- 
viduals. 

Again, the American Constitutions all regard Government 
as based on the consent of the people. Those who expressly 
adopt a Constitution, consent to it — and those who afterward 
live contentedly under it tacitly consent to it as the supreme 
law. But whenever the majority of the people rise up and 
demand a reformed Constitution, it is their right to have it — 
and they will have it, since the consent which gave .all the 
vitality to the existing Constitution is withdrawn, and of 
course it falls for want of moral support. Another takes its 
place. But it is said that this is revolution. Let us not be 
frightened at the sound of a word. It is a change — a peace- 
ful, moral change, promising a healthy improvement in State 
affairs. It is a step of progress — it may be of great progress 
in the cause of human rights and liberty. It is a work of 
reform in the errors of the past, based upon a broader and 
more enlightened experience. The case may demand a great 
and comprehensive reform — an uprooting of public evil and 
a thorough purification of the government. It may then be 
so broad and comprehensive, so enlightened and liberal, so 
pure and just, as to amount to a revolution — a great and 
peaceful moral revolution, in the mode of administering the 
powers of Government ; and if so, then I say, so much the 
better. Let the revolution come, and trust the result to the 
enlightened moral natures ®f the living generation — those 
men of better experience, who are to bear the burdens of Gov- 
ernment and to reap all its benefits. 

"A law," says Mr. Bentham, w is proposed to a legislative assembly, 
Who are called upon to reject it upon the simple ground that by those who 



OF THE CONSTITUTION OF GOVERNMENT. 53 

in some former period exercised the same power, a regulation was made 
having for its object to preclude for ever, or to the end of an unexpired 
period, all succeeding legislators from enacting a law to any such effect 
as that now proposed. Now, it appears quite evident that at every period 
of time, every legislature must be endowed with all those powers which 
the exigency of the times may require, and any attempt to infringe on 
this power is inadmissible and absurd. The sovereign power at any one 
period can only form a blind guess at the measures which may be neces- 
sary for any future period ; but by this principle of immutable laws, the 
Government is transferred from those -who are necessarily the best judges 
of what they want, to others who can know little or nothing about the 
matter. The thirteenth century decides for the fourteenth ; the fourteenth 
makes laws for the fifteenth ; the fifteenth hermetically seals up the six- 
teenth, which tyrannizes over the seventeenth, which again tells the 
eighteenth how it is to act, under circumstances -which cannot be foreseen, 
and how it is to conduct itself in exigencies which no human wit can an- 
ticipate. 

" Men who have a century more of experience to ground their judg- 
ment on, surrender their intellect to men who had a century less experi- 
ence, and who, unless the deficiency constitute a claim, have no claim to 
preference. If the prior geneneration were in respect of intellectual qua- 
lification ever so much superior to the subsequent generation — if it under- 
stood so much better than the subsequent generation itself the interests of 
that generation, could it have been in an equal degree anxious to promote 
that interest, and consequently equally attentive to those facts with which, 
though in order to form a judgment it ought to have been, it is impossible 
it should have been acquainted V 

"In a word, will its love for that subsequent generation be quite so 
great as that same generation's love for itself? 

" Not even here, after a moment's deliberate reflection, will the asser- 
tion be in the affirmative. And yet it is their prodigious anxiety for the 
welfare of their posterity that produces the propensity of these sages to 
tie up the hands of this same posterity for evermore — to act as guardians 
to its perpetual and incurable weakness, and take its conduct forever out 
of its own hands. If it be right that the conduct of the nineteenth cen- 
tury should be determined, not by its own judgment, but by that of the 
eighteenth, it will be equally right that the conduct of the twentieth cen- 
tury should be determined, not by its own judgment, but by that of the 
nineteenth. And if the same principle were still pursued, what at length 
would be the consequence ? — that in process of time the practice of legis- 
lation would be at an end. The conduct and fate of all men would be 
determined by those who neither knew nor cared anything about the mat- 
ter ; and the aggregate body of the living w r ould remain forever in sub- 
jection to an inexorable tyranny, exercised, as it were, by the aggregate 
body of the dead." 

Rev. Sydney Smith, in commenting upon these passages of 
Mr. Bentham, addresses " all Noodledom" in this wise: 

" The despotism of Nero and Caligula would be more tolerable than an 
irrevocable law. The despot, through fear or favor or in a lucid interval, 
might relent ; but how are the Parliament who made the Scotch Union, 
for example, to be awakened from that dust in which they repose — the 
jobber and the patriot, the speaker and the door-keeper — the silent voter 
and the men of rich allusions, Cannings and cultivators, Barings and beg- 
gars — making irrevocable laws for men who toss their remains about 

5* 



54 HITMAN RIGHTS AND THEIR GUARANTIES. 

with spades, and use the relics of these legislators to give breadth to brocoil, 
and to aid the vernal eruption of asparagus !" 

And then adds this gifted man, who is not less distin- 
guished for sense than wit : 

" If the law is good it -will support itself; if bad, it should not be sup- 
ported by the irrevocable theory, which is never resorted to but as the 
veil of abuses. All living men must possess the supreme power over their 
own happiness at every particular period. To suppose that there is any- 
thing which a whole nation cannot do, which they deem to be essential 
to their happiness, and that they cannot do it because another generation, 
long ago dead and gone, said it must not be done, is mere nonsense. 
While you are captain of the vessel, do what you please ; but the mo- 
ment you quit the ship I become us omnipotent as you. You may leave 
me as much advice as you please, but you cannot leave me commands T 
though, in fact, this is the only meaning which can be applied to what 
are called irrevocable laws. It appeared to the Legislature for the time 
being, to be of immense importance to make such and such a law. Great 
good was gained or great evil avoided by enacting it. Pause before you 
alter an institution which has been deemed to be of so much importance. 
This is prudence and common sense ; the rest is the exaggeration of fools, 
or the artifice of knaves, who eat up fools." 

These observations are as applicable to a written Constitu- 
tion as to a legislative act — the unfitness of either must be 
sufficient cause of repeal, and the living generations must 
decide upon it. 

It* is provided by the Constitution of the State of Indiana, 
that the people shall declare by a formal vote every twelfth 
year whether they are in favor of a convention to revise, 
amend or change their Constitution. If a majority are found 
to be in favor of a convention, the Legislature provides by law 
for the election of the members of that body, and thus a re- 
vision of the fundamental law of the State may be readily 
obtained. 

A constitutional amendment is no more to be dreaded than 
a legislative act ; and in a State where the population is 
doubled once in twenty years, and wealth is quadrupled in 
the same period, the people outgrow their old Constitutions 
as certainly as children do their swaddling clothes. Many 
of the United States are at present pinched with the constitu- 
tional wardrobes of their infancy ; and although these bodies 
corporate project in all directions from out their antiquated 
garments, they so much dread the work of amendment as to 
be regardless of decorum, and linger on in their exposed con- 



OF THE CONSTITUTION OF GOVERNMENT. 55 

dition. If it were only a point of taste, it would not be so 
serious a matter ; but when the administration of justice, 
the correction of public abuses, and the progress of a free 
people are involved in constitutional amendment, it is worse 
than folly to oppose it. Why should the people distrust 
themselves ? Has any convention assembled to deliberate on 
a State Constitution in this country, ever done intentional 
wrong? This cannot be pretended — while it is known that the 
Legislatures have done many outrageous acts of injustice ; and 
yet there are not wanting men who will endure this without 
complaint, while they are averse to calling a convention for 
constitutional amendment with a view to the purification of 
the Government, once even in twenty years. This can hardly 
rise to the dignity of honest error — but it is called conservat- 
ism. Its leaders hold offices which might be disturbed, 
while their followers tremble lest a reform might ruin the 
country. Conservatism, indeed! What would they con- 
serve but precedent, which they can turn to individual profit, 
and place which they unworthily fill ? What do they fear, 
but the correction of abuses — what do they hope, but that the 
people may slumber and be despoiled ? Do they doubt the 
sense and justice of the present generation — or do they not 
rather dread the correction and the scourge which that gen- 
eration longs to apply to their errors and corruptions ? 

It is one office of a written Constitution to delegate and 
distribute the powers of Government. 

The Constitution confers power upon the representatives 
of the people — it concentrates in them the moral forces of the 
State, to the end mainly that the sense of justice which re- 
sides in the public mind may be brought to bear practically 
upon the conduct of individuals, to regulate, restrain, and co- 
erce them whenever it shall be necessary. 

But in order to prevent such a centralization of this power 
as would defeat the design of its delegation, and to secure a 
just expression of the moral feeling of the community, it is 
necessary to distribute the functions of government to various 
departments, so that one set of delegates shall make laws, 
another shall expound and apply them to individual cases, 



56 HUMAN RIGHTS AND THEIR GUARANTIES. 

and another shall execute them. These offices are separate 
in their nature, and cannot be conferred upon the same public 
functionaries without danger of injustice and tyranny. In this 
all publicists are agreed. 

Moreover, where the Constitution sets limits to the exer- 
cise of legislative authority, there must exist an independent 
tribunal to decide upon the validity of the laws. If a law 
be enacted in violation of the Constitution, it is void — but it 
must be so declared by the judiciary before its nullity can be 
made apparent. The judges ought, therefore, to be separate 
from and independent of the legislature — so that they may 
examine without prejudice, and fairly determine, every ques- 
tion which is made respecting the constitutionality of the 
laws. If the legislative and judicial powers be united in the 
same officers under a Constitution which limits the former, 
the limitation altogether fails for lack of a proper tribunal to 
test the question whether the legislature has exceeded its au- 
thority. 

All the American constitutions separate the legislative 
from executive and judicial functions, and commit them to 
different officers ; but the separation is not always rendered 
complete. For instance, in the State of New-York the Sen- 
ators, who compose one branch of the legislature, constitute 
the great majority of the members of the Court for the Cor- 
rection of Errors, which is a court of last resort, and decides 
finally upon the constitutionality of laws of their own enact- 
ment. This is so obvious a departure from the principle of 
separating the legislative from the judicial function that it 
cannot much longer obtain. The people have it under con- 
sideration, and so manifest an error cannot fail of correction.* 

* At a Convention, held about a year ago in the city of New- York, to consider 
of Constitutional amendments, Mr. Theodore Sedgwick spoke of this clause in 
the New-York Constitution as follows : — 

"I come to the second head of legislative power, and that is its power over the 
Constitution itself. It may sound paradoxical, but it is strictly true ; you have no 
Constitution. The State of New-York exists without one. What is a Constitu- 
tion ? The fundamental idea of a Constitution is, that it is an instrument by 
which the people impose restrictions and limits on the legislature, and which 
that legislature cannot transcend without a direct appeal to the people themselves. 
No such state of things exists with us, simply because the legislature, or one 
branch of it, the Senate, is the highest branch of your judiciary, and passes on 
the constitutionality of its own acts j or, in other words, the legislature construes 



OF THE CONSTITUTION OF GOVERNMENT. . 57 

Another office of the Constitution is to provide for the 
choice of all public functionaries by the people. 

It is entirely out of harmony with our whole theory of 
government, to deny the right of the people to choose their 
agents. The fabric of self-government has no foundation, 
unless it be conceded that the people have a right and are 
competent to choose in the most direct manner every officer of 
the State. What is he but the mere representative of the 
aggregate moral feeling of the community ? The people 
have instituted the government — they have adopted the Con- 
stitution and arranged the details of office ; they stand as 
lords paramount, sustaining, improving, amending and con- 
troling the State machinery, which operates at their will, 
and redounds to their benefit. 

Who, but they who ordain an office of State, shall fill it ? 
Is it supposed they are not interested in having fit agents to 
do their work ? — that they to whose intelligence and virtue 
the Constitution owes its origin, have not the requisite wis- 
dom to choose agents to administer its powers ? 

In what other case is the party in interest denied the right 
of appointing his agent ? Surely in no case except that of 
mental imbecility. Admit the sovereignty of the people, and 
it necessarily follows that in every instance it is their right 
and duty to choose the officers of State ; their right because 
of their supremacy, and their duty because of the immense 
moral interests which are staked upon the action of govern- 
ment. Herein the American constitutions depart from the 
true theory of rightful government, by providing for the ap- 
pointment of very many important State officers by the 
agents of the people, instead of providing for the invariable 

the Constitution — the attorney gives such interpretation to the power under 
which he acts as he pleases." 

On the same occasion, Robert H. Moms, then Mayor of New- York, referring to 
this subject, said — " The legislature passed the General Banking Law — its consti- 
tionality was discussed in "'both branches of the legislature. Immediately after 
the law was passed and an institution organized under it, a friendly suit was in- 
stituted expressly to obtain the decision of the same Senators who voted for the 
bill, as judges of the Court of Errors, declaring the law constitutional. The case, 
for form's sake, passed rapidly through the subordinate tribunals, and during the 
eame season, before a single member of the Senate who passed the law had gone 
out of office, the same persons who passed the law, made it constitutional by 
their votes as judges !" 



58 HUMAN RIGHTS AND THEIR GUARANTIES. 

choice of all officers by the people themselves. The worst 
corruptions nestle in the bosom of the executive department 
of State, and this branch of the government can never be 
purified without stripping it of patronage. 

Let the people resume the power of appointing to office, 
which they have improperly delegated to this department, 
and they will redeem it from temptation and corrupting in- 
fluences — from the importunity and bribes of office-seekers — 
the scandal of the disappointed, and the false eulogy of the 
gratified applicants for official station. Let the people have 
a direct vote upon the choice of every officer, from the Presi- 
dent of the United States to the constable of a town — from a 
Secretary of State to a deputy postmaster — and no longer 
cheat the true sovereigns in a free State out of the best por- 
tion of their rightful authority by the trick of Executive ap- 
pointment to office. 

As there can be no violation of the natural laws without 
consequent evil — so a Government based upon the principles 
of justice and equality cannot violate the law of its existence 
without incurring harm — and the American people are at 
present afflicted with the curse of Executive patronage, for 
their transgression of the fundamental principle of a free 
Government. 

This, together with many other evils flowing from the 
American Constitutions, has arisen from a want of harmony 
between the great principles lying at the foundation of demo- 
cratic institutions, and the mode of procedure under them. 
The principle is sound ; but it is not followed out in detail. 
The people are trusted a little way, and then a sudden fear 
chills all confidence, and they have masters appointed over 
them. They may elect a Governor directly, but must choose 
electors to elect a President. They may elect a County 
Treasurer, but not a State Treasurer — a Justice of the Peace 
but not a County Judge. They are permitted to choose a 
Congressman, but not a village Postmaster. This is worse 
than absurd — it corrupts the Executive power, and fills office 
with sycophants and unworthy incumbents. It produces 
that scramble for spoils, that rush to the Executive cham- 



OF THE CONSTITUTION OF GOVERNMENT. 59 

ber, which shocks the moral sense of the community at 
every inauguration of a new President or Governor. As 
confidence in the democratic principle gains ground, this 
abuse will be gradually corrected and we shall get rid of 
those details which we have borrowed from the limited mon- 
archy of Great Britain, and oddly enough blended with our 
institutions, without perceiving their unfitness. 

It is not strange that our ancestors resorted to the British 
Constitution in preparing the framework of our political in- 
stitutions. Nurtured as they were under English laws it 
was natural enough that they should continue to respect 
them after their independence was achieved, and that they 
should remain the moral colonists of the mother country. 
American lawyers were students of the English system of 
jurisprudence, which at the period of the Revolution had un- 
dergone the most skillful arrangement ; and at the hands of 
learned commentators, had received such adornment and 
polish as that its defects were concealed, and its merits ren- 
dered conspicuous and striking. Prejudiced by their legal 
education our lawyers readily acquiesced in the opinion that 
the common law was the perfection of reason, while the 
people regarded the British Constitution as the best ana 
purest in the world. Perhaps in a comparison with the laws 
and institutions of other countries at that time, those of 
England merited such high eulogium. Moreover it has been 
plausibly asserted that the revolt of the colonies from the 
parent country, arose more from the pride of self-government 
than from a disposition to reform abuses, more from a love 
of national independence than from a profound scrutiny into 
the defects of the English system of laws ; and if so, it is not 
difficult to account for the main features of British institu- 
tions remaining among us after the establishment of our in- 
dependence. Most of the States adopted the 90mm on law 
and statutes of England, except when contrary provisions 
were made by their own Constitutions and laws ; and no dis- 
trict code of laws has ever been adopted to the exclusion of 
the common law of England, by any of the States of the 
American Union, save one only. I hope I shall not be under- 



60 HITMAN RIGHTS AND THEIR GUARANTIES. 

stood as attempting to derogate from the merits of our Revo- 
lutionary ancestors. Theirs was a vast labor ; never so 
much was done by one generation for human rights and lib- 
erty as they accomplished. But after all they left us a 
mighty work to do, in perfecting a code of fundamental laws, 
which shall be in harmony with the principles of just gov- 
ernment. They gave us the germ of free institutions which 
experience only could expand into full life and maturity. 
They erected a mighty framework whose main pillars were 
worthy to support the great Temple of Liberty ; but the 
minor parts were composed of foreign materials gathered 
from British institutions, which it is our duty and privilege 
to reject as our experience shows them to be out of harmony 
with the main design of our political fabric. 

It is well known that the framers of the Federal Consti- 
tution doubted of the success of their experiment in free gov- 
ernment ; that many of them believed that the republic 
would soon glide into a monarchy of the British type, and in 
that view desired our institutions to correspond at the outset 
as near as possible with those of the mother country, so that 
the shock would not be much felt when they should give way 
to monarchical rule. The debates of the Convention report- 
ed by Mr. Madison, confirm this view. The British Consti- 
tution was eulogized by several of the most distinguished 
members of that body, and it was expected by them that this 
government would finally end in a like form. Mr. Pinckney 
declared that he expected this result, but not till after a long 
time should have elapsed. Mr. Hamilton acknowledged that 
he thought unfavorably of republican government, but ad- 
dressed his remarks to those who thought favorably of it, in 
order to prevail on them to tone their government as high as 
possible. He looked to the British government for the best 
mode of combining public strength with individual security. 
He could not rely upon pure patriotism, and agreed with Mr. 
Hume who pronounced all that influence on the side of the 
crown which went under the name of corruption as an essen- 
tial part of the weight which sustained the equilibrium of the 
British Constitution. 



OF THE CONSTITUTION OF GOVERNMENT. 61 

Gouverneur Morris seconded a motion allowing the Presi- 
dent to retain office during good behavior, saying that was 
the way to get a good government. 

Dr. Franklin thought there was a natural inclination in 
mankind to kingly government, and he was apprehensive 
that the government of these states would end in a monar- 
chy. Elbridge Gerry thought democracy the worst of all 
political evils. 

The Constitutions of the General Government and of the 
States were framed in fear and dread of the experiment of 
confiding power to the people, by men who were without 
the light of experience, except what history unfolded of the 
disasters which had befallen all former republics. In this 
state of hesitation and doubt, the British Constitution ap- 
peared like an ark of safety, and it was greatly im- 
itated, by adopting an almost omnipotent Legislature — by 
clothing the Executive power with appointments to office, 
and by embracing the system of English Jurisprudence and 
its Judiciary. In all this our ancestors may have adopted 
many wise institutions and salutary laws — but at the time of 
their adoption they had not a true option, for they knew of 
nothing better. They had no experience except under the 
British Constitution — a departure from which was regarded 
as a hazardous experiment. They did not believe, without 
doubt, in the capacity of our race for self-government ; the 
mass of our citizens had not enjoyed the means of education 
and a free press had not shed its influences upon the popular 
mind — moral and political science was yet in its infancy, and 
experience, which teacheth all true wisdom, and is the only 
test of theory, had not as yet exemplified the principles of 
democracy, and converted the dreams of philosophers and the 
hopes of the multitude into great and triumphant practical 
truths ; and, so, whatever was done was a step in the dark, a 
mere venture, without at all settling the principles upon 
which free government is to rest forever. But the framers 
of the American Constitutions provided for an experiment, 
whose career has been triumphant, in the light of which we 
may so arrange the details of Government as to secure the 

6 



62 HUMAN RIGHTS AND THEIR GUARANTIES. 

complete supremacy of the popular will and rid ourselves of 
the last vestige of political injustice. 



CHAPTER IV. 

OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 

The remaining object of a Constitution, which I propose to 
notice particularly, is to limit the powers of government 
which are delegated to the representatives of the people. 

The tendency of every government is to overaction, the 
ministers of power are fond of its fullest exercise, and it has 
ripened into a proverb that " the world is governed too much." 

Whether government be over-officious from benevolent mo- 
tives, from the inherent activity of the human intellect, from 
mistaken notions as to the proper limits of legislative authori- 
ty, from the ambition of public functionaries, or their love of 
power, it is not so important to ascertain, as to determine the 
point where the State ought to abstain from action — and to 
prohibit any encroachment upon the rights of mankind. 

The experience of men under most governments has hith- 
erto presented an almost unbroken series of wrongs and op- 
pressions ; but it is only while smarting under the most 
grievous of these outrages that the subjects have arisen and 
demanded a guarantee against their repetition. The demand 
has occasionally been answered by a statute or a charter em- 
bodying the principle of protection particularly desired. 

There is little doubt, that if all civilized men had kept 
watch of the mal-administration of government, and had 
been permitted to protest against every departure from true 
principles, and to demand a fixed guarantee against its recur- 
rence for the future, that at the present time a perfect Con- 
stitution would have been elicited — one replete with limita- 
tions of State authority. 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 63 

But men have seldom dared to question the power of their 
rulers, and on great occasions only, and after unwonted persever- 
ence and oftentimes a bloody sacrifice, have the people gained 
any concessions favoring their rights and liberties. And even 
such as were thus gained have been greatly hazarded for the 
want of written constitutions — the greatest office of which 
is to garner up the wisdom of a nation, and as often as a true 
principle of government is evolved by its experience, to em- 
body it in the form of a command or a prohibition. Thus, m 
mercantile language, the Constitution becomes the Leger of 
a State in which all its political experience is fairly posted up. 

Something has been done in this way — and the greatest 
part of these entries will be found in the American Constitu- 
tions ; some of which are derived from our own experience, 
and others from that of our British ancestors. 

But this is to be said of them, that, until these and such 
like prohibitions shall assume a more specific form, and be 
carried into more minute detail, they will be trifled with in 
practice, and amount to little more than the poetry of poli- 
tics, with which the people may be delighted or amused while 
their rights will fail of protection by this means. 

It is trifling with mankind to declare by the Constitution 
that they shall not be deprived of their rights " unless by the 
iaw of the land " — since it is by law or its mode of adminis- 
tration, that most rights are sacrificed. It is altogether too 
vague a prohibition which declares that " cruel or unusual 
punishments shall not be inflicted," since a man may be 
hanged for a petty theft, notwithstanding this constitutional 
poetry. A proper constitution must be much more elaborate 
— must enter into detail — and every year of a nation's expe- 
rience will enlarge its specification of abuses which ought to 
be carefully named and provided against. I grant it may 
thus be swollen to a considerable volume — but if it be well 
digested and grow out of a nation's experience of the wrong- 
ful exercise of political power, it would be the most instruc- 
tive and profitable of all law books. It would be an act of 
authorship by Human Wrongs, dedicated to the protection of 
Human Eights. 



64 HUMAN RIGHTS AND THEIR GUARANTIES. 

The principal conservative clauses in the American consti- 
tutions to which I have referred are the following : 

That no man shall be deprived of his rights unless by the 
law of the land or the judgment of his peers ; 

Tkat in all customary cases the mode of trial by jury shall 
remain ; 

That there shall be freedom of religious opinion and pro- 
fession ; 

That the people shall have the right to keep and bear 
arms for public and private defence ; 

That the privilege of the writ of habeas corpus shall not 
be suspended except in cases of insurrection or invasion ; 

That no man shall be held to answer for a capital tfr infa 
mous crime except, on presentment of a grand jury ; 

That every accused person shall be allowed counsel to de 
fend him, and process for witnesses, and shall have an opeu 
and fair trial ; 

That no man shall be twice put in jeopardy of life or limb 
by a second trial for an offence ; 

That no man shall be compelled in a criminal case to tes- 
tify against himself; 

That private property shall not be taken for public use 
without just compensation ; 

That there shall be freedom of speech and of the press ; 

That in all prosecutions for libels the truth may be given in 
evidence ; and that the jury in such cases shall have the right 
to determine the law and the fact ; 

That public monies shall not be appropriated for local or 
private purposes without the vote of two-thirds of the mem- 
bers of the Legislature ; and a like vote is required to create 
a corporation. This is a provision of the Constitution of 
New- York. 

The States are prohibited by the Federal Constitution from 
exercising certain powers of sovereignty — and they cannot 
coin money, emit bills of credit, make any thing but gold and 
silver coin a tender in payment of debts ; pass any bill of at- 
tainder, ex-post-facto law, or law impairing the obligation of 
contracts, or grant any title of nobility. 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 65 

These are the principal restraints upon the authority of 
the State Governments — and their powers of legislation are 
otherwise unlimited. Are we satisfied with this condition of 
things — and are our rights secure under an omnipotent legis- 
lature ? It was deemed essential in the cases mentioned to 
restrain legislative action. Are the rights thus secured from 
invasion more sacred than others which are still exposed to 
it ? This cannot be pretended. Is it, then, believed that the 
Legislature never had any disposition, has not now, nor ever 
will have a desire to infringe upon any rights, but those which 
are thus guarded by these special constitutional prohibitions? 
Is the appetite of the Legislature only excited by these rights 
which the Constitution has thus snatched from its devouring 
jaws ? The Lion has not yet lain down with the Lamb — 
nor has democracy deprived Legislation of its power to do 
mischief. We must have further restraints upon the power 
of the Legislature, and we must increase their number in the 
exact ratio of its . abuses. Constitutional prohibition must 
keep pace with legislative encroachment — and every past 
grievance must be turned to account in future prevention. — 
Thus rights would gain a final entrenchment — since their in- 
vasion would be followed by constitutional safeguards. 

Life, liberty and reputation are involved in the modes of 
inflicting punishment for criminal offences. These are the 
most sacred of human rights — and the question, how far an 
offender may be curtailed or deprived of their enjoyment, 
though often discussed, has never been settled by the laws to 
the satisfaction of philosophic minds. The State has no 
more important duty than to determine its proper line of con- 
duct in this respect — and the leading principles of its criminal 
jurisprudence ought to be settled in its fundamental law. A 
barrier ought to be placed in the Constitution against any in- 
justice to a prisoner of state — since the passions of mankind 
are apt to rage violently against him — and while his case de- 
mands the most careful and tender consideration, the passions 
of the multitude may hurry him to destruction. The prisoner 
of state — what a history has the world presented of his 
wrongs !— and who hath not risen from the perusal of that 
6* 



66 HUMAN RIGHTS AND THEIR GUARANTIES, 

history in doubt whether, on the whole, the State has not 
been more crimmal than its prisoners ? Life has been 
cheaply estimated — human beings have perished on the scaf- 
fold for petty thefts, even under governments boasting of 
constitutional liberty. A mere difference of opinion in mat- 
ters of religious faith, has caused the death of thousands in 
States where trial by jury prevailed, and it was claimed that 
there were constitutional guaranties for human rights. 

The innocent and the insane have suffered on the gallows ; 
and although this was not intended, yet the best men in 
society upheld the State in inflicting the punishment of death. 

It is unfortunate, said they, if any but the guilty suffer ; 
but this punishment is necessary and rightful, and the state 
must be careful in determining the question of guilt. Tsow 
if it should turn out that this mode of punishment is neither 
necessary nor rightful, then the sooner a State abstains from 
the murder of its prisoners, and declares by the Constitution 
that it will so abstain, the sooner will it approach the stand- 
ard of rightful government. 

It is unfortunate that our language furnishes no word 
which expresses the idea of that procedure which the State 
can rightfully take for the prevention of crime and the refor- 
mation of offenders. We call it punishment, which conveys 
to most minds a wrong idea. It imports vengeance to an- 
swer the demands of human passions which have been 
excited by the offence — security from further wrong by dis- 
abling the offender — a terror and example to mankind — and, 
in some cases, the reformation of the evil doer. But this 
latter is poorly provided for, and restitution to the injured 
party scarcely enters into the account. 

This compound idea of punishment is altogether wrong, 
as well because of the false elements which enter into it, as 
by the omission of proper ones. The offender is endowed 
with all the rights of a man — he is one of the people com- 
posing the State, and can claim the perfect enjoyment of 
every right as against the State and every citizen thereof, ex- 
cept when security for the rights of others demands that this 
enjoyment by him shall be limited or restrained, By his of 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 67 

fence he forfeits no rights whatever, but only incurs a limita- 
tion, a restraint of its enjoyment so long as the public safety 
may require. This is justified by the principle of self-de- 
fence. Society has a right, for its security, to take into cus- 
tody all persons who are shown by their actions to be at war 
with the rights of mankind. These are persons, who, for the 
Want of ordinary moral endowment and culture, or because of 
mania, are at times impelled by their passions to commit such 
acts of wrong and outrage as are termed felonies, when perpe- 
trated by responsible persons. If a man commit murder, theft 
or forgery, or any other crime, the State at once, in the exer- 
cise of its true function, the protection of rights, has a duty 
to perform. It cannot be indifferent — but while it is aroused 
in the defence of rights, it must be careful not to violate 
those of the aggressor. Upon the violation of a right, there 
arises at once an aggrieved party, who properly demands 
restitution if it be possible, and the State must look to it. — 
There is an aggressor to be dealt with, who is to be restrained 
of that liberty which he has abused, and which is now shown 
to be dangerous to the rights of others ; but an aggressor 
who is endowed with rights, which are also to be respected. 
He may or may not be a sane man ; that is immaterial so far 
as the true office and authority of the State are concerned. — 
He has violated right in such manner as to be a dangerous 
man ; that is enough to call for restitution to the ag- 
grieved party, and to cause the offender to be restrained of his 
liberty. He must be taken into the custody of the State, 
irrespective of his sanity or insanity — for the state knows 
only that he is a dangerous man, whose restraint is necessa- 
ry for the safety of society. 

These remarks are applicable to gross crimes — such as 
murder, arson, rape, burglary and theft — those involving 
great moral turpitude, violence and imminent danger to life, 
person and property. The State must take all persons 
charged with the perpetration of these offences into its cus- 
tody, for the purpose of determining the question whether the 
accused has done the act charged against him. The law 
having pronounced the act to be so dangerous to society as that 



68 HUMAN RIGHTS AND THEIR GUARANTIES. 

the offender must be restrained of his liberty to prevent its 
repetition, if the issue is found against the prisoner, the 
judgment of the tribunal should be that he be lodged in a 
place of confinement provided by the State for the detention of 
persons of the prisoner's description, there to remain, under 
appropriate treatment for his intellectual and moral condi- 
tion, until he should be discharged by due course of law. 
Whether the prisoner, in such a case, be a wilful felon or an 
insane man, in the common acceptation of the term, or a 
moral idiot, is not a question to be tried by the jury or to be 
determined by the court. It is, in the first place, immate- 
rial, since he has at any rate shown himself to be so danger- 
ous a man as that he ought not to go at large — and that is 
the foundation of the procedure of the State against him. 
Moreover, the State has no means of determining the mental 
condition of the accused, nor do I know that it has the right 
to attempt it. The act offensive to rights is the only concern 
of the State — the danger of that act is the foundation of its 
procedure. If it be an accident, there is no ground of fear. 
But if done on purpose it is dangerous, and the State must 
interfere to prevent its recurrence. Whether that purpose 
be sane or not, is not a proper question ; but if it be, then 
what is sanity ? Is not all intentional outrage upon right ir- 
rational or insane ? How can we determine to our satisfac- 
tion more than that the offensive deed was done, and that it 
was not an accident ? We have now an act — done by de- 
sign — manifesting such a dangerous condition of mind in the 
offender as calls for his restraint. 

Into what difficulties do we not plunge when we attempt 
to go farther — when we assume to act, as it were, in the 
stead of the Omniscient One — to determine the motive of the 
offender, and to deal out the measure of Divine justice? 
With that we have nothing to do — our business simply being 
to protect our rights from the aggressions of dangerous per- 
sons ; but whether they are thus dangerous from irresistible 
impulse, deliberate design, feverish or insane excitement, or 
from an original mal-organization, let us not attempt to de- 
termine by a jury trial. A jury can determine wk^ker a 



OF CONSTITUTIONAL LIMITATIONS .AND PROHIBITIONS. 69 

nomieide has been perpetrated — whether done by accident 
or design — whether in self-defence or not — and is not that 
enough? If done by design, and not in self-defence, ought 
the law to inquire further? It must inquire further if the 
prisoner is to be 'punished for the act — that is, if he is to have 
vengeance inflicted upon him. It would be cruel, indeed, to 
inflict vengeance upon an insane man ; but it is not cruel to 
restrain him and to cure him, which is precisely what justice 
and humanity require in all cases. 

Under the present systems of Criminal Jurisprudence, in- 
sanity is a perfect defence against an accusation for any 
crime. It has become the stereotyped plea, and juries pass 
upon it almost daily. If the plea be made out, the prisoner 
is found "not guilty," and discharged out of custody. His 
act may have been a homicide occasioned by the destructive 
mania: the disposition to kill is still as strong as ever, and 
the jury know it, and the Court trermVes when it discharges 
him lest he should kill others — but he must be permitted to 
go free, for he has been found not guilty, 

This verdict does not imply that he has not slain a fellow- 
being — does not mean that he is a safe man to go at large ; 
on the contrary, by reason of his mania, he is the most dan- 
gerous of men. But what the jury mean by a verdict of 
acquittal is, that he is not a proper subject fox punishment — 
t. e. no vengeance ought to be inflicted upon him, because he is 
smitten of Heaven, and is not morally responsible for his acts. 
What a mockery of rights — what profane attempt to equal 
Omniscience ! This acquitted prisoner is a dangerous man ; 
God alone may judge his motives — we will judge his acts ; 
and if they are to be dreaded, must protect ourselves from 
his outrages by his imprisonment. 

The plea of insanity is unsettling all our securities agamst 
violent offenders. Every body is insane who sheds blood, or 
at least alleges insanity. But even if it be granted, this 
ought not to lessen our security. The man who intention- 
ally sheds blood, has exhibited a condition of mind unfavor- 
able to the security of life, and that makes him a fit prisoner 
of State. If we inquire further, the chances are in favor of 



70 HUMAN RIGHTS AND THEIR GUARANTIES. 

his acquittal — for he may have been insane — who knows ? 
Do the Doctors ? See how they disagree. Do the spectators 
of the offence ? They may not know the definition of insan- 
ity. The mental philosophers ? They have not yet agreed 
where the mind resides, or what is mind or a diseased mani- 
festation of it. 

Nevertheless, on the occasion of a plea of insanity, the 
spectators, the doctors and philosophers all come to the wit- 
ness' stand and give out their crude speculations as to the 
state of the prisoner's mind. He is insane and irresponsible, 
in the opinion of some ; he is insane but can distinguish the 
the right from the wrong, in the opinion of others. He might 
be a monomaniac, some think, and still be the subject of 
punishment ; while others declare that the mere commission 
of the act hi question is evidence of such a mental constitu- 
tion or condition, as that the prisoner ought not to be the 
subject of punishment, but rather of restraint and benevolent 
treatment. In this conflict of opinion and theory, the court 
and jury are to decide the question upon which the life or 
death of a human being depends. Do they not perceive that 
what is sanity is not defined? and that it cannot be, with such 
accuracy, as that the life and reputation of a human being 
ought to be made to depend upon a judicial demarcation of the 
line which distinguishes sanity from insanity ? How can this 
line be drawn by the law in the uncertain state of human 
knowledge, and amid the conflicting theories which obtain 
m mental science ? In no philosophy of mind, or theory of 
morals — no system of medical jurisprudence, or code of laws 
— is there to be found a rule by which sanity can be satisfac- 
torily distinguished from insanity, for the purpose of deciding 
the question of moral responsibility in a given case. # That 
which it is not given man to know with accurary, it is fortu- 
nate that he has no occasion to know ; and he need not 
know, for the purpose of deciding upon the destiny of a pris- 

* At a late meeting in the city of New- York, for the purpose of organizing a So- 
ciety for Prison Reform, Hon. John W. Edmonds, then President of the Board of 
Inspectors of the State Prison at Sing Sing, stated that out of 31 prisoners con- 
fined there who are now confirmed lunatics, 22 were insane when they were 
committed to prison ; and that out of less than 800 prisoners, 150 were constantly- 
asserting their innocence. 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 71 

oner of state, whether he was sane or not when he violated 
the right of his fellow man. We can determine upon the 
act, without deciding upon the mental condition of the 
offender ; and by restraining him of his liberty, secure our 
rights from further aggression. This fills the measure of 
our necessity, and by that our power is bounded. If we do 
more, we transcend as well the limits of our rightful autho- 
rity as our competency, and ourselves become presumptuous 
and rash offenders against the rights of our prisoner and the 
public safety. Let the court and jury, then, determine that 
the prisoner has done an act for which the laws demand his 
imprisonment, and let him be imprisoned accordingly. Let 
those who have him in custody critically examine into his 
history and condition of mind, and by all the means which 
science affords, undertake his cure and correction. Let him 
remain in custody so long as his case may require — for life 
if need be — but for so long a time, at any rate, as the safety 
of society may demand. Let him be treated as a moral pa- 
tient, with a view to his restoration to liberty ; let every thing 
be done in his behalf in the spirit of kindness by intelligent, 
experienced and scientific keepers ; and if, happily, a cure 
be effected, let them dismiss him with the divine injunction, 
" Go and sin no more." 

" The criminal brain finds itself in a social scene," says the author of 
" Vestiges of the Natural History of Creation," "where all is against it. — 
It may struggle on for a time, but the medium and superior natures are 
never long at a loss in getting the better of it. The disposal vjf such be- 
ings will always depend much on the moral state of a community, the de- 
gree in which just views prevail with regard to human nature, and the 
feelings which accident may have caused to predominate at a particular 
time. Where the mass was little enlighted or refined, and terrors for life 
or property were highly excited, malefactors have ever been treated se- 
verely. But when order is generally triumphant, and reason allowed 
sway, men begin to see the true case of criminals — namely, that while 
one large department are victims of erroneous social conditions, another 
are brought to error by tendencies which they are only unfortunate in 
having inherited from nature. Criminal jurisprudence, then, addresses 
itself less to the direct punishment, than to the reformation and care-taking 
of those liable to its attention. And such a treatment of criminals, it may 
be further remarked, so that it stop short of affording any encouragement 
to crime, (a point which experience will determine,) is evidently no more 
than justice, seeing how accidentally all forms of the moral constitution 
are distributed, and how thoroughly mutual obligation shines throughout 
the whole frame of society — the strong to help the weak, the good to re- 
deem and restrain the bad." 






72 HUMAN RIGHTS AND THEIR GUARANTIES. 

This theory negatives, of course, all idea of vengeance in 
our dealing with offenders. It also leaves out another false 
element in the idea of punishment — that of the infliction of 
pain for example's sake ; upon which I have simply to re- 
mark, that the whole power of society is exhausted when 
they have secured themselves from further harm from an of- 
fender ; and that if the State go farther and inflict pain upon 
him, which is not directed to his reformation and cure, it vio- 
lates his rights : and it is no answer to say that its object 
was to inspire terror in others, since by doing it, a wrong is 
inflicted on the prisoner — and as the example is an outrage, it 
can scarcely be expected that any good can come of it. 

This theory also denies to the State the right to take the 
life of its prisoner. I will not say that in a state of war, or 
when dangerous marauders and outlaws are at large, that 
their pursuers may not take life when they are unable to ar- 
rest ; but I maintain that when the offender is in custody as 
a prisoner of state, the law cannot authorize the taking of 
his Jife, because, from the mere fact that he is in custody, 
the necessity of the prisoner's destruction (a necessity arising 
from a sense of insecurity from the violence of the prisoner 
while at liberty) ceases to exist ; and without absolute neces- 
sity, the State can no more justify the taking of human life 
than a private citizen. I therefore claim that the life of the 
prisoner of state should be declared inviolable by the Consti- 
tution ; and, moreover, that the principles which ought to 
govern the State in its proceedings against offenders, should 
be contained in the fundamental law, to the end that the life 
and reputation of the prisoner may be secured from the vio- 
lence and aggression of the agents of the State, and that he 
may be treated according to the dictates of justice and hu- 
manity. The principles which I have advocated (imperfectly, 
I confess) are far more conservative of the rights of men 
living in society, than those upon which the present system 
of criminal laws is based. 

The law now arbitrarily fixes the term of imprisonment 
for all cases — it may be from one to ten years — from ten 
years to imprisonment for life. Has the legislature any rule 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 73 

by which it can determine that five years' imprisonment will 
reform a thief, that ten years will correct a burglar, fif- 
teen years a forger, and twenty years reform an old offender 
on whom a former term of imprisonment wrought no im- 
provement whatever ? No doubt it can be demonstrated that 
hanging an offender by the neck until he be quite dead, will 
effectually eradicate a propensity to commit homicide. But 
after a convict's term of imprisonment has expired, he must 
come out, whether any reformation has been effected or not ; 
and in many cases he repeats his offence during the first 
week of his liberty. As often as otherwise, he is more har- 
dened and confirmed in his erring dispositions than when he 
was convicted, and society again suffers for its false procedure. 
But I cannot further pursue this subject at present, and re- 
fer the reader who may desire to examine this important 
branch of State authority, to a late work of Mr. M. B. Samp- 
son, of London, on Criminal Jurisprudence, in which criminal 
responsibility, and the proper treatment of State prisoners 
are discussed with great ability.* 

* " The propositions contained in the work," to employ Mr. Sampson's words, 
" may be stated as follows, viz : — 

" 1. That every manifestation of the mind depends upon the conformation and 
health of its material instrument, the brain. That it is not the function of a sound 
and healthy brain to give rise to any other than healthy manifestations, and that; 
consequently, no error of judgment or conduct can ever arise but as the result of 
a defective condition of that organ. 

" 2. That the laws which govern the conformation and growth of the brain are 

Erecisely the same as those which govern all the other organs of our system, and 
ence, that the various conditions of brain, and consequent varieties of disposition, 
are to be attributed solely to the effects of hereditary transmission, and the subse- 
quent influence of external circumstances. 

"3. That if the foregoing proposition be correct, the treatment of the morbid 
manifestations of the brain should be carried on upon the same principle as the 
treatment of the morbid manifestations of any other organ ; and that it must be 
irrational to inflict punishment upon the sufferer from an ill-conditioned brain at 
the same moment that we expend our utmost care and pity upon the victim of 
ill-conditioned lungs. 

" Standing on these positions, the work proceeds to show that the inconsisten- 
cy of society in punishing men for disorders of the brain, so far from having ever 
yet tended to diminish crime, has been one great cause of its increase, and that it 
can only be safely and effectually subdued by adopting towards the suiferer the 
same mode that we should employ if his disorder instead of being seated in the 
brain were seated in any other organ ; namely, by benevolently directing our sole 
efforts to the mitigation of his infirmity. 

" I may add, that in working out the above propositions I touched upon the 
glaring evils constantly taking place from the confused notions at present enter- 
tained regarding the nature of man's responsibility to his fellow man; and after 
having exposed, by the evidence of the most eminent physiologists, the unsound- 
ness of the belief that there are certain descriptions of crime which result from 
defective organization, and which should therefore be treated compassionately 



74 HUMAN EIGHTS AND THEIR GUARANTIES. 

It is provided by the Constitution of the United States that 

" Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof."* 

under the plea of irresponsibility, and that there are other descriptions which 
are independent of organization altogether, and should therefore be treated by 
punishment, I furnished what 1 believe to be the only definition consistent with 
common sense, viz. : — ' that so far from the Creator having sent into the world 
some beings who are responsible and others who are exempt from responsibility, 
there is, in fact, no exception whateA'er ; and that every human being is alike re- 
sponsible — responsible (according to the degree of his departure, either in mind 
or body, from that degree of sanity necessary to the proper discharge of his so- 
cial duties) to undergo the painful but benevolent treatment which is requisite for 
his cure.' 

" From this it would be seen that I hold that the mere fact of an individual hav- 
ing committed or attempted to commit a crime, should be taken as sufficient 
evidence that his mind is in an unsound state, since in any society the only test we 
can have of insanity is that which is furnished by the existing laws. There is no 
individual in whom an harmonious balance of all the mental powers is to be 
found, and consequently, if we speak with rigorous exactness, 'no human mind 
is in its right state ;' but societies by their laws define what they consider to he the 
proper manifestations of the mind, and the various acts which indicate its de- 
pravity. The man who acts in strict conformity with all the laws and customs to 
which society demands obedience, is held by that society to be a 'right-minded 
man;' while he who infringes any of them is held, to the extent of his infringe- 
ment, to be of ' depraved mind.' The terms sanity and insanity have hitherto not 
been used, because it has been the custom to regard the manifestation of the feelings 
and passions as taking place in complete independence of the health or sound 
conformation of the brain ; but the error of this belief having been fully demon- 
strated, we are at once compelled to take unsound acts as evidences of an un- 
sound brain, and hence obedience to the laws in criminal and to the customs of 
society in civil cases must come to be regarded as the time tests of mental sanity." 

* In 1789, when Gen. Washington visited New-England, the Presbytery of the 
Eastward convened at Newburyport, and presented to him an address in which 
they said : 

"Among the objections to the Federal Constitution, we have never considered 
the want of a religious test, that grand engine of persecution in every tyrant's 
hand ; but we should not have been alone in rejoicing to have seen some explicit 
acknowledgment of the only true God, and Jesus Christ, whom he hath sent, 
inserted somewhere in the Magna Charta of our country. We are happy to find, 
however, that this defect has been amply remedied in the face of all the world 
by the piety and devotion in which your first public act of office was performed, 
by the religious observance of the Sabbath, and of the public worship of God, 
of wmich you have set so eminent an example, and by the warm strains of Chris- 
tian and devout affections w r hich ran through your late Proclamation for a general 
Thanksgiving :" 

To this Address, Washington, with his characteristic prudence and wisdom, 
made a reply, from which the following is extracted : 

" The tribute of thanksgiving which you offer to the gracious Father of 
Lights, for his inspiration of our public councils with wisdom and firmness to 
complete the National Constitution, is worthy of men, who, devoted to the pious 
purposes of religion, desire their accomplishment by such means as advance the 
temporal happiness of their fellow men. And here, I am persuaded, you will 
permit me to observe, that the path of true piety is so plain as to require but little 
political direction. 

" To this consideration we ought to ascribe the absence of any regulation res- 
pecting religion from the Magna Charta of our country. To the guidance of 
the Ministers of the Gospel this important object is, perhaps, more properly com- 
mitted. It will be your care to instruct the ignorant, and to reclaim the devious ; 
and, in the progress of morality and science, to which our Government will give 
every furtherance, we may confidently expect tha advancement of true religion 
•nd the completion of our happiness." 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. '75 

The Constitution of the State of New- York has a provi- 
sion on the same subject, in these words : 

" The free exercise and enjoyment of religious profession and wor- 
ship, without discrimination or preference, shall be forever allowed in this 
State to all mankind." 

Other State Constitutions contain similar provisions, the 
object of which is to secure what is called freedom of Reli- 
gion, or the perfect equality of religionists before the law. 
But it does not appear that the equality of all men, irrespect- 
ive of their religious opinions, is actually secured — nor but 
that there is in this country a species of religious establish- 
ment, notwithstanding these constitutional provisions. It 
would seem that the State has not yet perfected the work of 
human enfranchisement, if any man can suffer for opinion's 
sake. 

The sense of religion is innate in the human mind — or, in 
other words, man is a religious being by the very constitu- 
tion of his nature. He may possess much or little of this 
feeling, according to his organization ; but if a man be found 
who is entirely destitute of it, his mind is far from being in 
a normal condition, and he is a very eccentric person. Perhaps 
that is the worst that ought to be said about him. The reli- 
gious sentiment has its seat in the organ of veneration, which 
originates the feeling of awe and reverence for the Supreme, 
the Infinite, the Almighty Power of the Universe. Faith, 
when allied to veneration, disposes a man to believe in Di- 
vine mystery ; and Hope, looking to the future, lends its 
bright images to religion, and points him to a happy immor- 
tality. To the combined action of these sentiments may we 
ascribe the religious feelings. Now, since these relate to In- 
finity and the Future, it is difficult to perceive why the ab- 
sence of any, or a peculiar manifestation of these sentiments, 
has ever been regarded as an offence to the State. The reli 
gious feelings proper have little concern with the affairs of 
our present existence. Reverence for the Divine Being, faith 
in the infinite mystery which shrouds his existence and his 
power, and an expectation of a blessed immortality, refer 
rather to the Deity and man's relation to Him in a future 
world, than to those humble practical relations in which 



76 HITMAN RIGHTS AND THEIR GUARANTIES. 

man stands to his fellow in the social state. It is not upon 
these sentiments that a man relies when he appeals to his 
brethren for justice, the protection of his rights, or for love 
and sympathy. In the assertion of his rights, he appeals to 
the enlightened conscience of mankind — and addresses their 
benevolence when he demands their pity or charity. Although 
faith and hope abide in the human mind, yet greater than 
these is charity — and greater far than this favorite sentiment 
of the Apostle, is Justice. It is upon conscientiousness, en- 
lightened by the intellect, that the social man altogether de- 
pends for the acknowledgment and protection of his rights. 
Now, a man may possess a large endowment of the senti- 
ments of justice and benevolence, and yet be deficient in 
veneration, faith and hope ; so that, although in all his so- 
cial relations he may be upright and charitable, he will not 
manifest the religious feelings to such extent as other good 
men. On the other hand, a man may exhibit these feelings 
in a very striking manner, but at the same time possess such 
a scanty endowment of the sense of justice and benevolence 
as to circulate at a great discount in society on account of 
these defects, and, indeed, be rather a dangerous man. This 
is so well known, that it has ripened into a proverb that 
"one may be Godward straight, but manward crooked." 
Such persons are often charged with religious hypocrisy, 
while those wanting in the religious feelings, but who never- 
theless practice every social virtue, are denounced as infi- 
dels ; while the truth is, both of these classes of persons act 
in obedience to the laws of their organization — the one in 
yielding to the supremacy of the moral and the other to that 
of the religious feelings- 

Now, the religious as well as the moral sentiments are of 
themselves blind ; they produce mere feelings or emotions, 
which are altogether crude and ignorant until informed and 
directed by the intellectual faculties. 

But the observing and reflecting powers of the human in- 
tellect take up the theme suggested by these sentiments, 
and by the process of thought bring the mind at length to an 
opinion or judgment in the matter. This is a natural and in- 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 77 

evitable process of the mind. The intellect will inquire of 
facts, and make its deductions in reference to every emotion 
of the sentiments — it will reason and determine upon them. 
The religious, benevolent and conscientious feelings demand 
to be enlightened by the intellect, and must take their direc- 
tion accordingly. Now, because such an exercise of the in- 
tellect is natural and inevitable, the State can do nothing 
whatever in the case, either to interrupt it or to censure its 
ideal results. 

This innocent and necessary process of the mental facul- 
ties terminates in a speculative result or an opinion, which 
will be different in one mind from that of another ; but what- 
ever may be this diversity it is no concern of the State, 
since, at the most, only an opinion and not an act has result- 
ed ; an opinion, which, in the case of the religious sentiment, 
does not affect man's relations to his fellow-man, but only 
his relations to the Deity, which relations cannot be adjusted 
by human legislation. 

The State, then, having in view its only office, the protec- 
tion of rights, has no such concern with any speculation, con- 
elusion or belief, in reference to any question of religion or mo- 
rals, as will authorize it to make distinctions among men on 
that account ; but it must bring its authority to bear only 
upon such positive acts as are injurious to the rights of man- 
kind, and not attempt to diminish the sovereignty of reason. 

If this be correct, then several clauses in the American 
Constitutions ought to be stricken out — and conservative pro- 
visions made to protect freedom of opinion ; and the common 
law and statutes, so far as they interfere on this subject, ought 
to be abrogated. 

The Constitution of the State of North Carolina, which 
was adopted in 1776, contained the following provision : 

" That no person who shall deny the being of God, or the truth of the 
Protestant Religion, or the divine authority of either the Old or New Tes- 
taments, or who shall hold religious principles incompatible with the free- 
dom and safety of the State, shall be capable of holding any office or place 
of trust or profit in the civil department within this State." 

This was amended in 1836 — and " Christian " was substi- 
tuted for the word "Protestant." But for sixty years all 

7* 



78 HUMAN BIGHTS AND THEIR GUARANTIES. 

Catholics were excluded from office in that State— and al- 
though they are rendered eligible by the amendment— still 
all heathen and infidels are excluded, and the true believers 
have all the offices to themselves. But that this provision 
should not be written down in flat prose, without being re- 
deemed by any constitutional poetry, the frarners of the same 
instrument caused it to be inserted therein—" That all men 
have a natural and unalienable right to worship Almighty 
God according to the dictates of their own conscience." — 
They may worship — and the State will not interrupt them — 
but it will inquire as to the Divinity they adore — and if He 
be not the Constitutional Jehovah, the unlawful worshipers 
will be excluded from civil office. They may, however, hold 
military offices — the State being content to have heathen 
bleed in its defence. 

Then what may not the Legislature enact as to persons 
holding religious principles which may be deemed incompati- 
ble with the freedom and safety of the State ? Even the 
Ofcristian sects may attempt under this clause in the Consti- 
tution to exclude each other from office. Ought such a door 
to be open — such an attempt to be possible ? 

The Constitution of Massachusetts, adopted in 1780, de- 
clares that 

"The Commonwealth have a right to invest their Legislature with 
power to authorise and require, and the Legislature shall from time to 
time authorise and require the several towns, parishes, precincts and other 
bodies politic, or religious societies to make suitable provision at their own 
expense for the institution of the public worship of God, and for the sup- 
port and maintenance of public Protestant teachers of piety, religion and 
morality in all cases when such provision shall not be made voluntarily/' 

The Legislature is invested with authority to enjoin upon 
all subjects an attendance upon such teachers of religion — if 
there be any which they can conscientiously and convenient- 
ly attend ; but the people are to have the choice of their 
teachers. Every denomination of Christians demeaning 
themselves well shall be equally protected by the laws — and 
no subordination of one sect to another can be established. 

This portrays the infant state of Religious Freedom, in 
the " Cradle of Liberty." It would seem, according to the 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 79 

principles which I have endeavored to maintain, that there 
was this obvious mistake in this Constitution — that it express- 
ly authorised what it ought more expressly, if possible, to 
have forbidden — to wit, a species of religious establishment 
and its compulsory support. 

The chief officers of State under this Constitution were re- 
quired to declare that they believed in the Christian Religion 
and had a firm persuasion of its truth ; — but by an amend- 
ment adopted in 1820, this is dispensed with, and they now 
swear allegiance to the Commonwealth and that they will 
support the Constitution. 

The Constitution of the State of New- York provides for 
the free exercise and enjoyment of religious profession and 
worship. But notwithstanding this provision, the Legislature 
may interfere with the rights of opinion — and the courts in 
the administration of the common law may punish a man for 
speaking against the prevailing religion of the country. 

In most of the States witnesses are subjected to a religious 
test. A man cannot testify in a Court of Justice, unless he 
believe in a God — and in the State of New- York in former 
years many respectable persons were declared to be incompe- 
tent witnesses because they did not believe in a state of fu- 
ture rewards and punishments. Even under the present laws 
of the State, the witness must believe in a God who will 
punish false swearing, or he is incompetent. 

Before requesting a neighbor to witness a will, the testator 
must be sure that he knows his religious opinion, and must 
be careful to select a man who will not relax his faith — lest 
the witness should prove to be incompetent for the want of 
this religious test, and the will should therefore turn out a 
nullity. If a man happen to be slain in the presence of an 
unbeliever, it is fortunate for the offender — since there can be 
no proof made against him — and so the community may be 
exposed to further violence. 

This exclusion of a witness for this cause is based upon 
the notion that religious faith is necessary in order to ensure 
a proper regard for truth. This is unphilosophical and op- 
posed to the experience of practical men. The religious sen- 



80 HUMAN RIGHTS AND THEIR GUARANTIES. 

timents are independent of that faculty of the mind which 
respects the truth. They may exist to a striking degree, and 
the possessor may nevertheless commit perjury with great 
facility. I speak as well from the constitution of the human 
mind as from a liberal experience of testimony from all sorts 
of men. I have known religious perjurers and infidel per- 
jurers — and as many of one as of the other. It is to the senti- 
ment of conscientiousness that we owe the regard for truth — 
and we have seen that that may exist independent of the re- 
ligious feelings. How unwise, then, to adopt a religious test 
for a witness ? All intelligent moral beings ought to be re- 
garded as competent witnesses — and the degree of credit to 
be awarded to their testimony must depend upon the charac- 
ters which they bear in society. 

Neither the rights of witnesses nor suitors can be regarded 
as secure without the adoption of this rule, and it seems to 
me important enough to be incorporated in the Constitution 
of a State. 

If the State has no concern with matters of faith ana* opin- 
ion — if its only authority is to conserve human rights — if 
every man may demand of right that he be not molested 
by the power of the State, unless he hath infringed upon 
another's rights — if, in a word, the principles which have 
guided me in this attempt to define the powers of the social 
body, are well founded in reason and morality, as I cannot 
doubt they are, then in respect to matters purely of a reli- 
gious nature the laws ought to be as silent as if there were 
no such thing as religion in the world. The law can have 
no religion, since it cannot have all. If it select that of one 
sect, it offends against the rights of all other sects. If it 
take into favor the religion of the majority, it tyrannizes 
over the minority ; if it establishes the religion of the Chris- 
tian, it offends the Infidel, the Jew and the Heathen. But 
it is fortunate that the State has no occasion to interfere on 
the subject, since it can protect the rights of all men with- 
out infringing upon the rights of any, and it has only to de- 
clare that there are so many good religions that it will not 
venture to make choice among them. 



Of CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 81 

How, then, could any legal controversy arise because of re- 
ligion or any matter of faith or opinion ? The believer and 
the infidel might debate, but the State would not interfere 
until they came to blows. If the believer struck first, the 
State would condemn him, although he might hold the 
best sort of religious opinions. The State would judge him 
by his acts alone. In the religious riots which lately dis- 
graced Philadelphia, the State perceives only that arson, 
murder and other crimes have been committed, and it is 
hoped will prevent their recurrence. 

In the tierce paper warfare of sects the law may detect a 
libel — not a libel on religion — but on human character. But 
it can not detect any heresy, because it has no orthodox 
faith — nor can it punish blasphemy, because the law only 
protects human rights. 

As regards the observance of a day of rest, the State has 
an undoubted authority to abstain from all action on such a 
day ; but it cannot rightfully compel any man to keep Sunday 
as a religious institution ; nor can it require him to cease from 
labor or recreation on that day, since it cannot be shown thac 
the ordinary exercise of the human faculties on that day is 
in any way an infringement upon the rights of mankind. 

There cannot properly be any legal controversy as to the 
introduction of the Bible into the schools. The law has no 
Bible, and cannot recognize any distinction between Catho- 
lics, Protestants, Jews and Infidels. 

The interests of religion, as well as the rights of man- 
kind, are deeply concerned in establishing these principles. 
There is no surer way to make any religion odious than to 
attempt to coerce men into its support. If I wished to cor- 
rupt and destroy it, I would give it power over the laws. 
The stake would soon follow the statute, and the conscience 
and benevolence of mankind would revolt at its alliance with 
the State, and both would fall together. 

But, it is inquired, can a State exist which recognizes no 
religion? I answer that it can, as well as if it do not re- 
cognize music. One is no more the natural offspring of the 
human mind than the other ; and both will flourish best 



82 HITMAN EIGHTS AND THEIR GUARANTIES. 

without the interference of the State authority. And, in- 
deed, the State might as well ordain a tune as a religious 
exercise, and a few fragments or notes of that tune, as a few 
fragments or parts of any particular religious faith. 

A statute of the State of New- York, enacted in 1844, on 
the subject of Common School Education, contains this 
clause : 

" No school shall be entitled to a portion of the school monies (?. e. mo- 
nies from the school fund of the State) in which the religious secta- 
rian doctrine of any particular Christian or other religious sect shall be 
taught, inculcated or practiced, or in which shall be used any book or 
books containing compositions favorable or prejudicial to the particular 
doctrine or tenets of any Christian sect, or which shall teach the doctrine 
or tenets of any ether religions sect." 

u But nothing herein contained shall authorize the Board of Education 
to exclude the Holy Scriptures without note or comment, or any selec- 
tions therefrom, from any of the schools provided for by this act; but it 
shall not be competent for the said Board of Education to decide what 
version if any of the Holy Scriptures, without note or comment, shall be 
used in any of the said schools; provided that nothing herein contained 
shall be so construed as to violate the rights of conscience as secured by 
the Constitution of the State and of the United States." 

This statute arose out of a controversy between the Catho- 
lics and Protestants, in the city of New- York, respecting re- 
ligious teaching in the schools. It is well that it ended in a 
statute rather than in bloodshed, as did a like controversy in 
Philadelphia, although the statute may be based upon false 
principles. It virtually forbids religious teaching in the 
schools ; while it seems to me that it ought neither to forbid 
nor to command it, but to remain as silent on the subject of 
religion in the schools as elsewhere, and leave the people of 
each school district to determine their course for themselves. 

A school district is a small democracy — and is exactly 
adapted to the entire control of its own affairs. If this be not 
so — there is no virtue in the democratic principle, and the 
sooner we centralize the powers of State the better. 

But the Board of Education are not allowed by this act to 
determine what version of the Holy Scriptures without note 
or comment, may be used in the schools. This may be very 
well — since, if I am right, the inhabitants of the district 
must manage every thing. I have only to observe on this 
provision, that I do not perceive how the Legislature in its 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS, 83 

proper capacity obtained any idea as to what Scriptures are 
holy and what are not — what are with and what are without 
note or comment. 

A few more such statutes, and the decisions of our courts 
will by and bye become deeply imbued with ecclesiastical 
learning and quotations from the holy fathers ; and sectarian 
religion will furnish a large share of legal controversy. Re- 
ligion was once forbidden to go to law, and it would profit by 
obedience. 

This statute at last preserves the rights of conscience— 
which had the Legislature observed at the outset, the statute 
would not have been passed — and the School Districts would 
have been permitted to manage their affairs in their own way. 

The error lay in the recognition of a religious controversy 
at all. It might have been permitted to spend its force in 
argument — the State could not properly take part until some- 
body was hurt. 

It would seem that we need further constitutional pro- 
visions — such as will render it impossible for the religionist 
of any sect whatever to obtain the least legal recognition, or 
the ratification of any portion of his creed, the adoption of 
his sacred books, or any other favor from the State. Until 
the State take the position of perfect indifference and impar- 
tiality — the rights of conscience will not be secure — and that 
religious freedom, so much boasted in America, will rest upon 
an unsafe foundation. 

While several of the States punish blasphemy — declare 
Sunday to be holy time, require officers to believe in the 
Christian religion, and witnesses in a God and a future state 
of rewards and punishments — the clergy, who teach all these 
things, and thus prepare the citizen to hold office, and the 
witness to speak the truth according to the theory of the 
State, who put thanksgiving and praise into the mouth of the 
blasphemer, and cause the Sabbath to be kept holy ; the cler- 
gy, I say, are disfranchised by the very States which uphold 
these religious institutions. 

The Constitution of North Carolina provides that no preach- 
er of the Gospel shall be capable of being a member of either 



84 HUMAN RIGHTS AND THEIR GUARANTIES. 

the Senate, House of Representatives or Council of State. — 
This is done abruptly by the old North State and wants a 
preamble — such an one as the clergy cannot " go to war " 
upon. That is furnished by the Constitution of New-York 
in these words — after providing for religious freedom — 

"And whereas the ministers of the Gospel are by their profession dedi- 
cated to the service of God and the cure of souls, and ought not to be di- 
verted from the great duties of their functions ; therefore no minister of 
the Gospel or priest of any denomination whatsoever, shall at any time 
hereafter, under any pretence or description whatever, be eligible to or 
capable of holding any civil or military ollice or place within this State." 

Were ever stronger expressions of respect and reverence 
for man or his vocation used, than are contained in that pre- 
amble? — and was there ever greater distrust, fear and alarm 
manifested than in the succeeding clause, lest the clergy 
should get into office on some pretence or other ? 

It cannot be disguised that the framers of the Constitution 
feared the physicians of souls — dreaded the men who are 
dedicated to the service of God — and meant to keep them at 
their vocation lest they should interfere with State affairs and 
do civil mischief. They are even kept out of military office 
— forgetful that in the Revolutionary war the clergy came 
gallantly up to their full measure of duty, and that they both 
preached and fought as occasion required in the cause of 
liberty.* 

We have seen that by some of the State Constitutions it 
is provided that a man who has too little religion cannot hold 
any office — and in the case before us the clergy are excluded 
for having too much ! And so between the several provisions 
we must seek out a just and constitutional religious medium. 
" Believe in a God and the Christian religion " says one Con- 
stitution, " or you can hold no office." " If you teach the being 
of a God and any religion whatever, you shall hold no of- 
fice," says another. So if you believe in a God and do not 
teach it, you may be eligible to office in one State — but if 

* Rev. Thomas Allen, who was at the battle of Bennington, tinder General 
Stark, was asked if he killed any one. He answered, " he did not know, but 
that, observing a flash often repeated in a bush hard by, which seemed to be sue 
ceeded each time by a fall of some of our men, he leveled his musket, and tiring 
in that direction, put out the Jlash ! " 



OF CONSTITUTIONAL LIMITATIONS AND PROHIBITIONS. 85 

you teach the "being of a God, whether you "believe it or not, 
you are excluded from office in another. 

Democracy cuts an awkward figure in coquetting with re- 
ligion. It seems to have difficulty in defining its position, 
and had better at once assume an air of perfect indifference. 

The Constitution forbids any minister of the Gospel or 
priest of any denomination from holding office. "What per- 
sons answer this description ? A priest we may know — but 
who is " a minister of the Gospel "? I know of no legal ad- 
judication as to what is " The Gospel." And so I put a case 
with great respect. A new sect has lately arisen called 
Mormons, who believe in the divine authenticity of the Jew- 
ish and Christian Scriptures, but claim to have an additional 
revelation through an inspired prophet by the name of Smith. 
In their religious exercises, which I have witnessed, an or- 
dained priest or minister presides. He preaches a sermon 
from a text usually taken from the Christian Bible — he prays 
— and the congregation sing psalms from a small book com- 
posed by their order. In their manner of religious exercise 
and devotion it is difficult to distinguish them from Protes- 
tant dissenters. Are their preachers and administrators of 
their sacred rites " ministers of the Gospel or priests of any 
denomination" within the meaning of the Constitution of 
New- York? They exist in this State, and the question may 
possibly arise upon the election of a Mormon teacher to office. 

This provision in the New- York Constitution sprang from 
the memory of religious persecutions in which the priests 
acted a large part. But it is to be borne in mind that they 
are powerless unless the law lends them its energies. If we 
have no State religion — if we will not allow any notice or 
preference of any one feature of any religion whatever to be 
given by the laws — if the State neither directly nor indirectly 
will recognise religious faith or the absence of it as material 
in any case, then the teachers of religion will be disarmed of 
that power which seemed to be dreaded by the framers of the 
Constitution, and ought to be as eligible to office as any other 
citizens. Separate religion from the State, and the minister 
of the Gospel and the teacher of any religion would stand 



86 HUMAN EIGHTS AND THEIR GUARANTIES. 

upon his merits like any other member of society. And if 
the people desired his election to office, it seems to me he 
might serve the State in an official capacity, without any 
grievous neglect of the cure of souls or the service of the 
Almighty. 

This disfranchisement of the clergy is without any sound 
principle to rest upon ; and since the State is not to know or 
inquire into men's opinions, or religious faith or practice, and 
as all rational moral beings are to have their full enfran- 
chisement by the law until they offend against right, and 
thus fall into the category of the governed, it would seem 
that we ought to erase the article in question from the Con- 
stitution.* 

* The Democratic Review, of December, 1843, contains an able article, attribu- 
ted to John Bigelow, Esq., of the city of New-York, on the subject of Constitutional 
Reform, in which the disfranchisement of the clergy is thus spoken of: — 

" We object that the clergy are, by the Constitution, ineligible to, and incapable 
of holding, 'any civil or military oifiee or place within this State,' and are thus 
denied a full, practical enjoyment of the privileges of citizenship. This, we be- 
lieve, is the only clause in the present Constitution, which is unconditionally dis- 
creditable to the statesmanship of every man who advocated it. If anything could 
add to the absurdity of the act, it would be the reasons they gave for doing it. — 
'Whereas, the ministers of the Gospel are, by then profession, dedicated to the 
service of God and the cure of souls, and ought not to be diverted from the duties 
of their functions ; therefore, no minister of the Gospel, or priest of any denomi- 
nation whatever, shall, at any time hereafter, under any pretence or description 
whatever, be eligible to, or capable of holding any civil or military office or place 
within this State.' In the first place, the conclusion is, in itself, a wretched non 
sequitur ; and, in the next place, when it is as well remembered as it was once 
understood, that this provision against the political elevation of the clergy was 
introduced solely to protect our institutions from the principles of that body, which 
were generally conceived to be fatally adverse to the existence of civil and reli- 
gious liberty, every one will, at once, perceive that we have branded the whole 
body with a mark of public distrust, which, whether deserved or not, is no more 
necessary, under our liberal suffrage system, than it is to compel the people to bor- 
der their garments with fringe, as the Jews were commanded by Moses, that they 
may become more mindful of, and obedient to the laws that exist. 

" We will admit, if necessary, that, at first, the clergy would make unpractica- 
ble, and, we believe, unpopular statesmen ; but. we have not the remotest idea 
that it would be possible for their whole united order to turn the Legislature of 
the State, in any perceptible degree, from its appointed orbit. Whether they 
would choose to avail themselves of the privilege of holding office, would depend 
upon two questions; first, whether it were calculated, as the Convention sug- 
gested, to divert them from the duties of their sacred functions ; and, secondly, 
whether, if it were, they were conscientious enough to refuse it. If they were 
not, it is hardly worth while for the State to oppose obstacles to their leaving a 
profession which they can't but disgrace. If they were, it is idle to impose pro- 
hibitions upon them. If on the other hand, the duties of the two functions were 
not found to be inconsistent, it is a gross injustice to the clergy to deprive them 
of their just influence in the making and administering of those laws which they 
are forced to submit to. It is not that we look for any special accession of wis- 
dom to the counsels of the State, or fidelity in the administration of her affairs, 
by removing these restric ions from the clerical profession ; but we are not willing 
that our Constitution, the sanctuary of our political faith, should any longer give 
refuge to a principle of legislation so intolerant and so mean." 



CONSTITUTIONAL LIMITATIONS, ETC. 87 



CHAPTER V. 

CONSTITUTIONAL LIMITATIONS, &c— Continued. 

There appears to be no good reason why a State should 
not be as cautious about incurring debt as a private person, 
nor why the integrity of a nation is not as deeply stained by 
default of payment as that of an individual. It seems strange, 
indeed, while every private debtor is anxious to have his obli- 
gation cancelled, and congratulates himself on his good for- 
tune when he obtains his discharge, that a proverb should 
have prevailed to the effect that " a national debt is a na- 
tional blessing." 

The debt of an individual demands the sacrifice of his free- 
dom, for he must toil until it is paid ; of his luxuries and 
sometimes of his comforts, for these abstract money from his 
creditor ; of his pride and independence, since he is embar- 
rassed by another's power ; and so long as the debt remains 
unsatisfied, his integrity is exposed to criticism, and after 
failure to censure. Seeing all this, an individual will not in 
general incur debt, unless stimulated by hope or goaded by 
necessity, as to obtain a good which will more than counter- 
vail the evil of debt, or to escape from a condition more to 
be dreaded than that of a debtor. 

Far from regarding debt as a blessing, he detests it as a 
grievous burden, and oftentimes, goaded to desperation by its 
increasing weight, he associates the person of the creditor 
with the cause of his wretchedness, and detests him also ; so 
that a loan may convert a friend into an enemy, and the con- 
ferring of a pecuniary favor may only bri:.ig a curse in return. 
Excessive pride revolts at the sense of obligation, and in the 
absence of conscience calls the passions to its aid, and fills 
the mind of the harrassed debtor with vindictive feelings to- 
wards his creditor. The former must possess a sound integ- 



88 HITMAN RIGHTS AND THEIR GUARANTIES. 

rity, and no small share of philosophy besides, if, while 
groaning under a load of debt, he preserve a pure conscience 
and kind feelings towards a creditor who presses hard for 
payment. 

And yet nothing is more reasonable than that a debt 
ought to be paid — nothing more sacred than its obligation. — 
A debtor ought to employ every faculty of his mind and body 
in obtaining means to satisfy his debts, and he ought to deny 
himself of everything which is not necessary to his health 
and comfort until he has fulfilled his obligations. He con- 
sented to this when he incurred them. The credit was 
based upon his supposed talent, industry, economy and integ- 
rity. These are the pledges which he gave, and of these 
will the exactions of the creditor be made. It is no light af- 
fair, therefore, to incur such an obligation, and the wonder is 
that men so freely take it upon them. 

The debt of a State is not less burthensomenor less sacred 
than that of an individual man. It binds the labor, the 
wealth and the conscience of every citizen. No one is at 
liberty to question its obligation, or to postpone its payment. 
The creditor of a State, instead of trusting to the fidelity of 
one man, has confided in that of many men, and parted with 
his property — perhaps his only means of living — on the faith 
of a nation's integrity. In a Republic every man is implica- 
ted in this obligation, since every man is deemed to have 
sanctioned it. He may not have done it directly, but his 
agent or representative who acted in his stead has authorized 
the debt ; and if he did not intend to be bound by the act of 
his agent, he ought not to have constituted one with power 
to bind him by a pecuniary obligation without his express 
consent. The only thing to be done by the constituent body 
is, to pay up the debt contracted by their improvident agents, 
and to guard against their misconduct for the future. This 
will save the integrity and honor of the State, and preserve 
it from further debt. 

The Constitution of each State in the American Union 
ought to present a barrier against an unjust public debt. — 
The representatives of the people ought to be prohibited 



CONSTITUTIONAL LIMITATIONS, ETC. 89 

from expending the public treasure, and from borrowing mo 
ney on a pledge of public faith, except for the legitimate 
purposes of government, which are the making and adminis- 
tering of the laws, and providing for the public defence.— 
When these objects are secured, it would seem that the 
State can make no further demand of contribution from the 
citizen, since it cannot be perceived that any further expen- 
diture of money is necessary on the part of the State in order 
that it may discharge its great and only function — to wit, 
the protection of the rights of its citizens. Now there are 
involved in this constitutional limitation of the power of the 
representatives over the money and credit of the people 
great and important interests — the property and labor of the 
citizens, and the integrity and honor of the social body ; and 
these are too sacred to be disregarded by the fundamental law. 

The State cannot expend money without adding burdens 
to the labor, and detracting from the property of the people ; 
and it cannot borrow money without pledging their labor, 
properly and faith to its repayment. If they pay, they make 
sacrifice of labor and property ; if they refuse payment, they 
forfeit their integrity and honor, and are justly rendered in- 
famous in the opinion of all mankind. How important, 
then, that every pecuniary obligation of a State should in 
the first place be just, or, in other words, that it should be 
contracted for a legitimate purpose of State ; and, in the next 
place, that it should be regarded as sacred and be promptly 
paid. If the first of these objects be secured, there is little 
danger but the last will follow. 

To this end, the Constitution ought, if possible, to limit 
the expenditures of a State to its necessities ; and this will 
not be found to be altogether impracticable after it shall 
have denned the true function of government. 

The State may have external enemies, and for the purpose 
of defending against these it may draw money from its 
treasury, or borrow it on a pledge of the public credit. It 
can rightly expend money in a defensive war, but not in one 
purely oppressive or waged for conquest. A defensive war 
is necessary to uphold the independence and sovereignty of a 

8* 



90 HUMAN RIGHTS AND THEIR GUARANTIES. 

State, and thus maintain its Constitution and laws, whereby 
the rights of its citizens are guarantied ; and hence the ac- 
tion of the State, in such a war, resolves itself into the ulti- 
mate protection of individual rights. 

The State may have internal enemies, who are banded 
together for the purpose of opposing the laws or overthrow- 
ing the Constitution; and in defending against these the 
State is simply maintaining the bulwarks which surround 
the rights of the citizens. 

But after the State is free from these two classes of ene- 
mies, its whole concern is limited to the conservation of pri- 
vate rights from individual aggression and wrong ; and for 
this purpose it establishes the great departments of Govern- 
ment, to wit, the Legislative, Executive and Judicial, and de- 
volves the functions of each upon separate and various offi- 
cers or representatives of the popular will, who ought to be 
paid for their public services, and so much money as may be 
necessary for this purpose may be drawn from the treasury. 
When this is paid, I perceive no necessary demand upon the 
public purse ; and if there be none, then ought not the Con- 
stitution to declare that at this point all public expenditure 
by the representatives of the people shall cease, and thus 
save the property and labor of the citizens from any addi- 
tional burthen ? It seems to me that the power delegated 
to the Legislature over the public purse, ought to be limited 
to the simple necessities of the State — and these do not ex- 
ceed the bounds I have indicated. The people then would 
have delegated to their representatives a very limited power 
of taxation — they would have entrusted agents so far only as 
their necessities required; and there would be reserved to 
themselves, as of course, the right to determine by a direct vote 
at their homes and firesides, any question of further expend- 
iture. 

It would be absurd to say that the people might not, in the 
exercise of their sovereignty, embark in any work or expend- 
iture, however unnecessary. But they must project this 
themselves, and vote upon it; or, if projected by the Legis- 
lature, the details must be submitted to them for approval, 



CONSTITUTIONAL LIMITATIONS, ETC. 91 

and the disbursement of monies for such purposes must be 
expressly authorized by a direct vote of the people, and of 
all the people. For if the expenditure be not necessary to 
carry out a legitimate purpose of the State, I cannot perceive 
that a majority of the people have a right to vote away the 
money of the minority against their will. 

There must be a limit to the power of a majority, and one 
limitation is found in the subject matter upon which it may 
control by its action. To determine what is within the le- 
gitimate sphere of a majority of a State, we must settle 
what are its true ends and purposes — these the majority can- 
not rightfully transcend. 

When the people have paid what is necessary to maintain 
the independence of the State, and for the making and pro- 
per administration of the laws, it would seem that they have 
done all that can be required of them by way of contribution 
for public expenditure ; and that the State, having now co- 
erced them to the very limit of its necessary purposes, ought 
to refrain from further compulsion. This may appear to be 
a very narrow view of State sovereignty, and in comparison 
with the conduct of all governments may seem illiberal and 
mean. But I hold man individually to be sovereign — to be 
of right the complete master of his actions and of his estate, 
except when the State, from a moral or physical necessity, 
obtains a paramount right. But nothing short of necessity 
on the part of the State can take from the rights of the in- 
dividual man ; and where he does nothing wrong, and the 
State has no necessity, he ought to be as free from the au- 
thority of the State as if he were living in the purest condi- 
tion of nature. 

It is not so difficult to acquiesce in this principle theoreti- 
cally, as to carry it out in practice. What is necessary to 
preserve the rights of the people and for the public defence ? 

Most persons will agree to a liberal construction of this 
necessity, and consent that it may imply whatever is most 
convenient and immediately conducive to be the end to be at- 
tained. 

It will be said that common highways, being used by the 



92 HUMAN RIGHTS AND THEIR GUARANTIES. 

whole public, and being convenient for public and private 
business, affording facilities for citizens to attend their pri- 
mary assemblies, elections and courts of justice, and to re- 
spond to the call of the authorities in a civil or military ca- 
pacity, are necessary to the social body, and that the cost of 
their construction and repair may be rightfully compelled by 
the vote of a majority of the people. 

And it appearing that common education is necessary to en- 
able the citizen to understand his proper relations to the 
State ; and that the security of the social body depends m 
some degree upon the intelligence of the citizens; and that 
the common schools of this country have to a great extent 
increased the number of citizens who are qualified for self- 
government, and diminished in the same ratio the number of 
the disqualified — it is claimed that these schools are neces- 
sary to the safe existence of the State, and that the majority 
may rightfully compel the minority to contribute to their 
support. 

I perceive no great objection to either of these, as falling 
within a proper construction of the true necessity of a State, 
and, therefore, within the power of the majority. 

But I would still insist that the control of highways and 
schools ought not to be committed to the central power of a 
State, since the people can without inconvenience attend to 
their management at home. Let the school district be sove- 
reign within its limits for all the purposes of common educa- 
tion, and let the towns and counties have the entire control 
and management of common highways. 

But the general defence of a State may require extensive 
works, such as fortifications, military roads, &c, the con- 
struction of which may be committed to the central authori- 
ties, and the expense whereof must be borne by the whole 
people. In determining what works are necessary to an- 
swer the demands of public safety in case of external war, of 
invasion or insurrection, I know of no better rule for the 
State than to consider what a private person would require 
were he entrusted with the means of providing for the pub- 
lic defence, and were to set about it in good faith and on 
a plan of reasonaole economy. 



CONSTITUTIONAL LIMITATIONS, ETC. 93 

If the single point of public defence and its reasonable fa- 
cilities are kept constantly in view, to the entire exclusion 
of private and sectional interests, an enlightened and honest 
legislator will find no great embarrassment in defining the 
limits of the public necessity, and may avoid the tyranny of 
compelling the minority to contribute their money and labor 
for unnecessary and unjust public expenditures. 

The Constitution may be so framed as to guide the legis- 
lator in this respect, and the Judiciary may compel obedi- 
ence to it. It would not be difficult to limit the power of" 
taxation by enumerating the objects for which the public 
monies might be expended, nor would it be impossible to 
specify the particulars of such expenditure. But if we could 
not embrace them all in the Constitution by minute specifi- 
cations, we could, at least, enumerate the chief abuses 
against which we intended to be secure, and those we could 
name by way of prohibition ; and by increasing the prohibi- 
tions as abuses arose, we should at length attain to some- 
thing like completeness in our constitutional safeguards. 

Many of the States of the American Union are in a condi- 
tion to regard these observations with favor. 

The State debts which had been contracted prior to the 
year 1837, began to be discussed with considerable interest 
by the people during the commercial embarrassments of that 
period. It was found that many of the States had been ex- 
tensively engaged in constructing works of internal improve- 
ment, which were neither necessary for the public defence, nor 
likely to pay an interest upon their cost, if regarded in the 
light of an investment of capital ; — that these works had 
been in almost every case constructed by means of loans for 
which the faith of the State was pledged, and that it was 
necessary to resort to further loans or to direct taxation in or- 
der to pay interest. The debts of some of the new States ap- 
peared to surpass the ability of the people to pay, and some 
of the old States hesitated to levy a tax, and made various 
shifts to save their credit and to keep up fair appearances. — 
When it was considered that for many of these debts the peo- 
ple had nothing to show but the bonds or securities of insol- 



94 HUMAN RIGHTS AND THEIR GUARANTIES. 

vent agents or their accomplices in fraud — for some an un- 
profitable local improvement projected by the representatives 
of sectional interests in order to enhance the value of their 
private speculations — and for others the bonds of insolvent 
private corporations to which the credit of the State had 
been loaned by unjust legislation ; and that the aggregate of 
these debts in some States amounted to near thirty millions 
of dollars, the payment of which involved the honor of the 
State and compelled a resort to onerous taxation — there was 
awakened a wide-spread feeling of indignation against the 
unscrupulous and extravagant legislation which had caused 
the public embarrassments — a feeling which in some cases 
threatened a repudiation of the public debt, but in far the 
greater number of cases resulted in a determination to pay 
off the present debt, and to guard against like injustice and 
embarrassment for the future. 

It was fit that the State of New-York, which had departed 
asS far as any from the measure of a true necessity in her 
public works, and had set the example of constructing works 
of internal improvement on speculation by means of borrowed 
capital, should first declare the sacredness of the public debt, 
gather up means for its payment, and place the honor and 
credit of the people beyond the remotest suspicion of bank- 
ruptcy. To this end her good men and her statesmen labored 
long and well ; they opposed any furtfier loans — demanded that 
expenditures for internal improvement should cease — and that 
whatever deficit existed in the revenues of the State should 
be supplied by direct taxation. They were sustained by the 
people — no further debt was created — a tax was levied — and 
at the next general election after the imposition of this tax, 
the political party which was in favor of it, and, indeed, had 
enacted the tax, were retained in power by a larger majority 
of votes than they had obtained at any former election in the 
course of twenty years. 

In the course of the financial discussions which arose in 
the New- York Legislature, during the session of 1841, Hon. 
Arphaxed Loomis, a member of the Assembly from Herki- 
mer county, introduced a resolution designed to be mcorpo- 



CONSTITUTIONAL LIMITATIONS, ETC. 95 

rated in the Constitution of the State, for the purpose of pro- 
tecting the people against an unjust and onerous public 
debt. It was soon afterwards called " the People's Resolu- 
tion."* 

On the 19th of May, 1841, the House of Assembly was 
brought to a direct vote on this resolution, which resulted in 
ayes 53, noes 53 — every Democratic member voting in the 
affirmative, but the resolution was lost. It was, however, 
discussed in the newspapers, and the Conventions of the peo- 
ple during vacation, and a lively interest was taken in its 
success by a large portion of the citizens of the State. 

At the session of the Legislature for 1842, Mr. Loomis 
was again a member of the Assembly, and on the 10th day 
of January he again presented his resolution for adoption. — ■ 
On the 18th of that month it was referred to a committee o£ 
the whole House, where it was frequently called up and act- 
ed on, but was not finally reported to the House until late in 
the session, when a direct vote was had upon it, which re- 
sulted in 55 ayes and 49 noes, and it was again lost for want 
of a majority of all the members elected. The people kept 
watch of their favorite measure, and the resolution remained 
the subject of popular agitation. The Legislature was re- 
minded by memorials in 1843 that no safeguards were yet 
provided to protect the people from debt and taxation — that 
the condition of the public debt was such as to be viewed 

* The resolution was as follows : — 

" Resolved, That the Constitution of the State be so amended, that every law 
authorizing the borrowing of money or the issuing of State stocks, whereby a 
debt shall be created or increased on the credit of State, shall specify the ob- 
ject for which the money shall be appropriated ; and that every such law shall 
embrace no more than one such object, which shall be single and specifically 
stated, and that no such law shall take effect until it shall be distinctly submitted 
to the people at the next General Election, and be approved by a majority of the 
votes cast for and against it at such election : That all money to be raised by au- 
thority of such law be applied to the specific object stated in such law, and to no 
other purposes whatever, except the payment of the debt thereby created or in- 
creased. This provision shall not extend or apply to any law to raise money for 
the purpose of suppressing insurrection, repelling a hostile invasion, or defend- 
ing the State in war." 

At a County Convention, held in Herkimer County in September, 1839, Hon. 
Charles S. Benton introduced a resolution, which was adopted by the Conven- 
tion, declaring that " this Convention doth earnestly recommend an amendment 
of the Constitution of this State, as speedily as the constituted forms of proceed- 
ing will admit, providing an absolute prohibition against creating in future any- 
State debt, or selling or loaning the credit of the people in any case whatever, ex- 
cept upon the extraordinary occasions of foreign war or domestic violence and 
insurrection." 



96 HUMAN RIGHTS AND THEIR GUARANTIES. 

with great apprehension by the citizens — and that it was ex- 
pected that their representatives would propose an amend- 
ment to the Constitution which should effectually protect the 
constituent body from an unjust debt in future. 

The memorialists set forth the amendment which they de- 
sired — and concluded by stating that if the Legislature should 
decline to provide such amendment, then they asked that a 
Convention of the people of the State be called by law to re- 
vise and amend the Constitution. 

The issue was soon made up between the People and the 
Legislature — a people anxious for the amendment— and a Le- 
gislature reluctant to yield it — and the question was, whether 
the servant were greater than his lord. 

The people demanded the amendment or a Convention, and 
at the legislative session of 1844 the amendment was carried. 
It however requires to be passed by another Legislature be- 
fore it can be submitted to the people for ratification.* 

Since the first agitation upon this subject in the State of 
New-York, the State of Michigan has engrafted in its Con- 
stitution the principle of the " People's resolution." 

* The proposed constitutional amendment as passed by the Legislature is as 
follows : 

" The Legislature shall not, in any manner, create any debt or debts, liability or 
liabilities, of the State, direct or contingent, which shall singly, or in the aggregate, 
at any time, exceed one million of dollars, except to repel invasion, or suppress 
insurrection, unless the same shall be authorized by a law for some single object 
or work, to be distinctly speciiied therein : and such law shall impose and provide 
for the collection of a direct annual tax sufficient to pay the interest of such debt 
or liability as it falls due, and also to pay and discharge the principal of such debt 
or liability within eighteen years from the time of the contracting thereof ; and no 
such law shall take effect until it shall, at a general election, have been submitted 
to the people, and have received the sanction of a majoiity of all the votes cast 
for and against it at such election. And on the final passage of every such bill, in 
either House of the Legislature, the question shall be taken by ayes and noes duly 
entered on the journal, and shall be — ' shall this bill pass, and ought the same to re- 
ceive the sanction of the people ? ' And the assent of a majority of the members 
elected to each House of the Legislature shall be requisite to the passage of such 
bill, and such law shall be irrepealable until such debt or liability and the interest 
thereon are fully paid and discharged. And the monies arising from any loans 
or stocks creating such debt or liability shall be applied to the object or work 
specified in the act authorizing such debt or liability, or for the payment of such 
debt or liability, and to no other purpose whatever. Where a debt or liability on 
the part of the State shall be created to repel invasion or suppress insurrection, 
the monies arising from the loans or stocks creating such debt or liability shall be 
applied to the purpose for which the same were raised, or for the repayment of 
such debt or liability, and to no other purpose whatever." 

This amendment was rejected by the Legislature of 1845, and a law was passed 
at the same session authorizing the people to vote at the next general election on 
the question of calling a Convention to revise and amend the Constitution. 



CONSTITUTIONAL LIMITATIONS, ETC. 97 

The Territory of Iowa has prepared a Constitution for the 
purpose of organizing as a State and being admitted into the 
Confederacy. In thi& Constitution the Legislature is prohibit- 
ed from contracting a debt exceeding $100,000, except in case 
of war or insurrection, without first submitting the question 
to the people for their direct vote and sanction. And it is be- 
lieved that two or more other States have lately adopted 
amendments to their Constitutions, containing similar safe- 
guards. It is not doubted that the State of New- York will 
gain the desired amendment through a Convention, if it is 
not obtained by Legislative action. 

A State debt contracted by the direct vote of the people* 
and in the manner contemplated by the proposed amendmen 
to the New- York Constitution, would have this advantage 
over one authorized by the Legislature alone — it would pretty 
certainly be of far less amount, and it would be likely to be 
contracted for a necessary purpose. 

Moreover, the citizens having directly voted upon it, would 
feel a sense of obligation, which could hardly be expected of 
them, where their agents without their knowledge should 
have borrowed money and expended it for private and local 
benefits. Both debtor and creditor in the first case would be 
more secure ; the former from a large and unprofitable debt, 
and the latter from the danger of its repudiation. 

Indeed I should expect that term would go out of use in 
reference to State debts, in case such constitutional provi- 
sions as we have been considering should gain a general 
adoption. The honor of Americans and their political insti- 
tutions have been greatly scandalized in Europe on account 
of the neglect of two or three States to pay the interest on 
their debt ; a thing which never would have happened, if 
proper constitutional provisions had always existed in those 
States in regard to the mode of contracting debts. But after 
all, the cases of default are few and trifling, compared with 
the whole debt of the country from the period of our inde- 
pendence to the present lime, and while the American people 
may be regarded as decidedly opposed to a public debt, they 



98 HUMAN EIGHTS AND THEIR GUARANTIES. 

have not hitherto found out any more acceptable mode of get- 
ting lid of it, than by its payment in full.* 

* The following statement is taken from the Report of the Secretary of the U. S. 
Treasury, December, 164-1 : — 

" During the Revolutionary war, and antecedently to the adoption of the Federal 
Constitution, the thirteen United States had contracted debts to the sum of seven- 
ty-five millions four hundred and sixteen thousand four hundred and seventy-six 
dollars and fifty-two cents. 

" On the 1st January, 1790, the foreign debt, viz : to France, Spain, and to for- 
eign officers, including interest for the year 1790, amounted to the sum of 
$12,556,871 28. and the domestic debt to $60,219,022 44— together, amounting to 
the sum of $72,775,893 72. The population of the United States then numbered 
three millions nine hundred and twenty-seven thousand eight hundred and twen- 
ty-seven souls, according to the census of thai year. 

"On the 1st January, 1800, the national debt amounted to $82,976,294 35, and 
the population of the United States numbered live millions three hundred and 
five thousand nine hundred and twenty souls, according to the census of that year. 
'• On the 1st January. 1810, the debt of the United btates amounted to $53,173,- 
217 52, and the population numbered seven millions two hundred and thirty-nine 
thousand six hundred and fourteen souls, according to the census of that year. 

•' On the 1st January, 1816, the public debt had increased to the sum of $127,- 
334,933 74. This great increase was caused by the war of 1812 terminated by 
the treaty of Ghent of 1815, for the expenditures of which the taxes had been in- 
creased. The loans obtained amounted to the sum of $70,478,209 73, and Treas- 
ury notes were issued to the sum of $36,680,794 — together, making $107,159,003 73. 
" On the 1st January, 1820. the public debt had been reduced to the sum of 
$91,015,566 15. The population, as numbered by the census of that year, consist- 
ed of nine millions six hundred and thirty-eight thousand one hundred and thir- 
ty-one souls. 

" On the 1st January, 1830, the public debt was reduced to the sum of $48,565,- 
406 50. The population numbered twelve millions eight hundred and sixty-six 
thousand and twenty souls, according to the census of that year. 

" On the 7th December, 1835, the President's message announced that ' all the 
remains of the public debt have been redeemed, or money has been placed in de- 
posite for this purpose, whenever the creditors choose to receive it. All the other 
pecuniary engagements of the Government have been promptly and honorably 
rulrilled. and there wul be a balance in the Treasury at the close of the present 
year of about nineteen millions of dollars.' 

" On the 6th February, 1836, the commissioners of the sinking fund and the re- 
port of the Secretary of the Treasury stated that all the debt had been paid, ex- 
cept the sum of $37,513 05 — which consisted of claims for services and supplies 
durina: the Revolutionary war, $27,437 96; Treasury notes issued during the war 
of 1812, $5,755 ; Mississippi stock, issued under the act of the 3d March, 1815, 
$4,320 09 ; and they renewed their recommendation that the sinking fund and the 
commissioners of the sinking fund be discontinued. It may be presumed that 
those Treasury notes issued in the war of 1812, and not presented for payment, 
have been destroyed, and that of the other sums, so long due and unclaimed, 
only a small part, if any, will ever be presented for payment. 

" From the 31st December. 1789, to the 31st December, 1835, the United States 
paid for interest on the public debt the sum of $157,629,950 69, and for the princi- 
pal the sum of $257,452,083 24— together, making the sum of $415,082,033 93. 

" The national income out of which that extraordinary sum of upwards of 
$415,000,000, over and above the ordinary annual expenditures, (which, during 
that period of forty-six years, exceeded $500,000,000,) was paid, was derived prin- 
cipally from the duties on imports and tonnage, and the sales of the public land3. 
Direct taxes and internal duties and excises were employed from and after the 
8th day of May, 1792, until the 30th June, 1802, when they were repealed ; and 
again enacted in the year 1813. and repealed 31st December, 1817. A system of 
direct taxes and internal duties has been resorted to only in emergencies, and has 

Prevailed only for about fifteen years of the fifty-five which have elapsed since the 
ederal Constitution was adopted. 



CONSTITUTIONAL LIMITATIONS, ETC, 99 

Since we are considering of constitutional safe-guards for 
the right of property it may be well to inquire in this place 
whether the citizen does not need further protection against 
the sovereign power of the State in reference to the right of 
eminent domain. 

It is provided by the Constitution of the State of New- 
York that private property shall not be taken for public use 
without just compensation. 

The Constitution of other States bespeak a like protection 
for the citizen with similar brevity. 

What is a " public use" within the meaning of this Con- 
stitutional provision? Is it anything that the Legislature 
may please to specify ? If land and water be required for a 
canal, the private owner must surrender his estate at the 
bidding of the Legislature- — and yet the State may have no 
proper authority to construct that canal. For if the work 
in question be not the proper creature of the sovereign au- 
thority — if it be not necessary to the public defence, but only 
a matter of convenience to private business, the State is de- 
parting from its true sphere of action, and transcending its 
lawful authority in setting about the work. It is diffi- 
cult to reverse the old order of sovereignty — to set up the 
individual man, and to curb the omnipotence of the State. 
But nothing appears more reasonable to my own mind 
that a humble man, in possession of a well earned estate, 
may call in question the right of any Legislature to take away 
his property either in virtue of the much abused power of 
eminent domain or by way of taxation. He may of right 
demand that the purpose to which his property is to be de- 
voted by the public shall be of such a character as subserves 
the true ends of State authority. He is not the subject of 
arbitrary power, nor ought he to be the victim of a majority. 

There must be a proper reason for taking his estate — a ne- 
cessity arising in the exercise of a proper public function — a 
moral purpose intimately connected with the well being of 
the State and the safety of its citizens. Something more 
than a mere act of legislation is required to transfer his land 
or money from him to the Government, It is now his own, 



100 HUMAN RIGHTS AND THEIR GUARANTIES. 

and must remain such until the moral interests of the whole 
people make an imperious demand of the transfer. The 
convenience of a part of the people — the physical improvement 
of a section of the country — the facility of getting to and 
from market — the increase of commerce, or the promotion 
of manufactures, is not enough ; they are as nothing when 
weighed against the paramount rights of the individual man. 
But experience shows that this man needs something more 
than the reason of the thing to rest his case upon. His voice 
is feeble when raised against the mandate of an omnipotent 
Legislature. He must contrive to abolish the idea of abso- 
lute and universal sovereignty in that Legislature, by express 
constitutional provisions, which shall be conservative of indi- 
vidual rights. These must come to be regarded as omnipo- 
tent, and the individual man as sovereign. Government must 
be considered as subservient to the man and his rights — 
the mere creature of both, instituted as a servant and not 
ordained to be master. It is a sad mistake — one which has 
kept mankind under the galling yoke of despotism for all 
time past — this substituting the creature for the creator, and 
treating the State as the fountain of rights instead of regard- 
ing it as subservient to them. 

I set out in the first part of this work by asserting that 
Government was merely the instrument which mankind 
adopted to secure the full protection of those rights which 
were theirs by the laws of nature. This is the corner-stone 
of our entire theory — which, if well founded, precludes the 
idea of any State interference with individual rights, except 
for the conservation of rights in general. 

The "public use," then, which is left open to construc- 
tion in the provision of the Constitution referred to, needs to 
be defined in the instrument containing it. 

Everything — anything, may not be a true public use. Let 
us have a bill of particulars. Let the uses which are deem- 
ed necessary for the proper ends of the State be specified in 
the Constitution, so that for these, and" these only, the citi- 
zen shall be compelled at the instance of the Legislature to 
surrender his estate. 



CONSTITUTIONAL LIMITATIONS, ETC. 101 

In a subsequent part of this work I have referred to the 
doctrine of eminent domain, as applied in practice in most of 
the States, and have attempted to fix a limit to the exercise 
of this authority on the part of Government. I have there 
called in question the practice of delegating to private cor- 
porations the right to take private property for the purpose 
of constructing works of internal improvement. It cannot 
well be denied that the taking of private property for the 
use of the Government must be preceded by and founded on 
a public necessity — the relief of which is indispensible to the 
proper action of the State itself in the discharge of its legit- 
imate functions. If so, how can a private corporation be 
substituted for the State ? How can it be clothed with a 
right founded on a necessity which it never could experi- 
ence ? If such necessity really existed in the State, then 
would the State relieve its great want by taking to itself the 
property of the private owner. By not doing so, but confer- 
ring on private corporations the power of doing it for indi- 
vidual profit, the case of necessity is negatived — unless, in- 
deed, it be that sort of necessity which " knows no law." 
For, if the State felt a proper necessity, it has but one course 
to pursue, and that is one of duty. It must proceed with 
the work itself — otherwise the true purposes of the State 
would fail of being accomplished. The State cannot be per- 
mitted to shun a just responsibility. Either the work in 
question is a proper concern of the State, or it is not. If 
necessary in view of the proper functions of the State, then 
must the state attend to it ; if not, then there is no such ne- 
cessity in the case as warrants the exercise of the right of 
eminent domain. 

Perhaps it is time the question were settled whether the 
carrying of passengers by railroad is a proper function of 
State. If it be, then I submit that the State cannot delegate 
this proper function to a private corporation to be exercised 
for private gain. If it be not — as 1 cannot doubt it is not — 
then I need hardly say that there is not the shadow of foun- 
dation for the grant to such corporations of ihe right of taking 
private property for the construction of a railroad without the 
9* 



102 HITMAN RIGHTS AND THEIR GUARANTIES. 

consent of the owners. It is pure tyranny, and I am happy 
to find it so regarded by a portion of the American people. 

In the Constitution of Iowa, before referred to, the Legis- 
lature is prohibited from conferring upon private corporations 
the right of taking private property for the purpose of con- 
structing works of internal improvement without the consent 
of the owner; and this, I believe, is the first constitutional 
prohibition of the kind which has hitherto been adopted in 
this country. It would seem to be a necessary safeguard foi 
private right, since we know that the Legislatures of all the 
states are in the constant habit of clothing private corpora- 
tions with this highest attribute of sovereignty. 

I now turn to another branch of this subject — to wit, such 
constitutional safeguards as it seems necessary to provide for 
the security of the creditor against unjust legislation. 

During several of the late sessions of the Legislature of 
the State of New- York, petitions were presented, praying for 
the abolition of all laws for enforcing the collection of debts. 
This was a startling proposition to those who had not re- 
flected upon the subject, and compared the actual operation 
of existing laws with the objects which they were designed 
to effect. 

The petitioners have been censured by some as persons 
seeking to overthrow one of the greatest conservative props 
of the social condition, and have been ridiculed by others as 
devoid of reflection and judgment. I apprehend that their 
opposers have judged them wrong, since I am persuaded that 
they are persons who have only mistaken the remedy for a 
very great grievance — to wit, the inefficacy and instability 
of our laws affecting the sacred right of property. 

Thus did the petitioners reason. Our laws profess that if 
one man confide his property to another on the credit of the 
latter, that effectual remedies shall always be found in the 
courts to enforce a prompt and full satisfaction. There shall 
he neither a denial nor a delay of justice. The reluctant 
debtor shall be made willing, and the fraudulent one shall 
be punished. The property of the debtor shall always be 
regarded as a fund held in trust by him for the benefit of his 



CONSTITUTIONAL LIMITATIONS, ETC. 103 

creditors, out of which each shall be satisfied as he comes in 
his turn for payment. That if the creditor he not satisfied 
with the maxims of the common law which favor the dili- 
gent and prefer him to the forbearing creditor, he may in- 
voke the interference of the Court of Chancery, where a 
more liberal view is entertained of his rights, and, where, in 
the distribution of the debtor's assets, it is the standing max- 
im that " equality is equity." Moreover, if false and fraud- 
ulent representations have been made in the obtaining of 
credit, the criminal courts are open to the complaint of the 
sufferer, and the fraudulent bankrupt can there be indicted 
and condemned to prison for the offence. 

Here, say the petitioners, the law holds out all that is re- 
quired to assure the citizen that he may safely deal on credit 
with his neighbors. He does so, and soon has occasion to 
demand that the courts shall verify these professions. He 
institutes legal proceedings, and finds, to his surprise, that he 
has himself to bear nearly the entire burthen of their ex- 
pense. Instead of a speedy judgment, he finds the practice 
entangled by subtle and unnecessary forms which consume 
some months before he obtains judgment ; and then he finds 
that the debtor interest has conspired to obtain by statute a 
further delay before execution can be issued. Meanwhile 
the debtor has made an assignment of all his effects to a 
friend, who may or may not be responsible, and has preferred 
some creditors before others — whereby his execution is de- 
feated, and if he be not in the favored class of creditors his 
demand is lost. 

If he trusted to a mortgage, some statute enacted after he 
had received it, provides that the debtor shall have a year to 
redeem the estate after he should have been foreclosed, and 
that the creditor shall bear the chief part of the expense of 
the proceedings, which sometimes will absorb all the interest 
or profit made by the loan. Or, if he has trusted some citi- 
zen of a new State, a set of stay laws, or laws compelling 
the creditor, after great delay in enforcing his demand, to 
take the property of the debtor at an appraisal, will prevent 
him from regaining his money. And if, amid all these em- 



104 HUMAN EIGHTS AND THEIR GUARANTIES. 

barrassments, a creditor still continues to pursue the legal 
remedies held out for the collection of debts, a general bank- 
rupt law, having a retro-active operation, will be brought to 
hear upon him by act of Congress ; and he who has survived 
stay laws, appraisal laws, suits in chancery, delayed execu- 
tions, redemption under mortgage foreclosures, fraudulent as- 
signments, and State insolvent laws, now turns with despair 
from his hopeless assets and looks to the general assignee in 
bankruptcy for those gracious and munificent dividends which 
are to furnish the means of paying his own debts and of sup- 
porting his family. In despair he exclaims, " from all laws for 
the collection of debts, good Lord deliver us !" He attributes 
to them the loss of his fortune. Had he not confided in them 
he would not have suffered so much. He trusted to the laws 
— he believed in their efficacy. But for them he would only 
have trusted men of the most sterling integrity and honor, 
and of the greatest skill and judgment. He would then have 
run no risk, except of the life of his debtor, and in this state 
of mind he rejects all legal remedies. But he reasons badly, 
as men are apt to do while smarting under a sense of both 
public and private injustice. After all, that which has given 
him offence is a low state of public morals — lax notions of the 
obligations of the debt — too slight an appreciation of the sa- 
credness of the right of property — and the wretched legisla- 
tion of both the State and National governments, which in- 
terfere to defeat the just right of the creditor as often as a 
large portion of our population becomes embarrassed by, and 
are pressed for, the payment of their debts. He surely would 
not wish to deal in a community upon honor only, where the 
most honorable men, the legislators, pass retro-active laws, 
delaying and often defeating his just claim. If the legislator 
will do this, what will not the constituent do? He surely 
would not have the laws silent when some honorable man 
had got the entire confidence of another, obtained the best 
portion of his estate, and refused to account for a single 
farthing. He would allow some remedy — the mob, the 
dirk, or the pistol. These would be taken whether allowed 
or not; and their havoc of life and limb be justified by the 



CONSTITUTIONAL LIMITATIONS, ETC, 105 

public sentiment. This, then, is but the substitution of a 
mob for a sheriff, and the dirk for an execution — sad reme- 
dies these for the collection of debts. 

I fear these petitioners have not considered the true func- 
tion of government, which is to prevent moral wrong, and to 
redress all grievances arising from it. 

The obligation of debt is a moral one; any injustice 
respecting it demands the notice of the State as much as any- 
other offence. To have and enjoy property is a natural right, 
demanding the same protection as other rights. To give 
credit, to trust to man, is as instinctive as life itself; it is the 
very incident of our nature, it is inevitable, irresistible ; and 
the more noble and generous our nature, the stronger and 
more imperative is the impulse in this direction. 

A man has a right to be protected in that which grows 
out of his very nature and social relations. It is for this that 
government exists, " to prevent men from hurting one 
another." So far from abolishing laws acknowledging the 
sacred obligation of debt, and granting remedies for enforcing 
them, we need to reform the present code in favor of the cre- 
ditor, to grant more expeditious remedies, to inflict the bur- 
then of expense incident to non-payment upon the debtor, to 
abolish assignments giving preferences, and to deny to the 
Legislature the power of changing the remedies for the en- 
forcement of rights in such a manner as in the least to im- 
pair the right itself. 

The first step in this reform must be taken in the Consti- 
tution, that must prohibit retro-active laws ; and the second 
step must be to provide against a change of remedies for en- 
forcing rights, so as in the least to impair vested rights. Now 
the provision in the Constitution of the United States which 
enjoins a State from passing any law impairing the obliga- 
tion of contracts, does not come up to our requirement, since 
that provision is construed not to reach laws which merely 
affect the remedy. Yet the remedy gives to the right all its 
value. A right without a remedy is a mockery ; take away 
all remedy, and a right becomes a creature of sentiment 
merely, and not of law. If you make the remedy more diffi- 



106 HUMAN RIGHTS AND THEIR GUARANTIES. 

cult, expensive or tardy, you so far diminish the value of the 
right, as by these means you have embarrassed its enforce- 
ment. 

Full protection of the right is not obtained by the Consti- 
tution until the remedy is preserved by it from legislative 
invasion. I am aware that to ensure this protection is diffi- 
cult ; but we can at least go so far as to prevent the recur- 
rence of such legislation on the subject of remedies as the 
convulsions of the country have occasionally brought upon 
us. We can prohibit such shocking innovations upon reme- 
dies as the miscalled legal reform of 1840 in the State of 
New- York, whereby the burthen of enforcing his just claims 
was unexpectedly thrown upon the creditor, and the mort- 
gagee was compelled to sacrifice all he gained from his in- 
vestment in order to be restored to his former estate. We 
can prohibit such laws as that which enabled mortgagors to 
redeem after they were foreclosed, no such privilege being 
known when the debt was created. And after doing so 
much by the fundamental law, we must invoke the Legisla- 
ture to reform the statutes affecting the relations of debtor 
and creditor, and gain for them, if possible, a more speedy 
and equitable adjustment in our judicial tribunals.* 

* The following is extracted from a letter written by Hon. Michael Hoffman, 
while a member of the New-York Legislature in 1843, to the President of the 
State Association for Constitutional Reform. Mr. Hoffman has acted a large part 
in arresting the career of debt in that State, and was among the foremost in de- 
manding a Convention to reform the Constitution : — 

" The people must, therefore, reconstruct the edifice of freedom and safety; and 
a Convention to amend the Constitution appears to me the best and only practica- 
ble means of performing this great and sacred duty. 

M To what should the reformation extend ? To all ascertained abuses. As 
without strong and adequate security to the rights of properly there can be nei- 
ther abundance nor comfort, nor a full and fair development of the intellectual 
and moral man, the end and object of our being ; and as in our own and every 
age and country, the fatal vice of delegated power has been manifested in a cor- 
rupt desire to enable some, without labor, to live on the labor and property of 
others — the reform should especially be directed to furnish new and strong secu- 
rities for the rights of labor and property, against the exactions and special grants 
of power. The reform should be broad, solid and liberal ; and I proceed to state 
some of the principal subjects : 

" 1. It must retrench expenditure, reform useless offices and make the revenues 
equal, in a short and reasonable period, to the payment of the whole of the public 
debt, secure that revenue from destruction or diversion by the legislative power, 
and make it certain that soon the people shall be freed from debt and taxation 
for it. 

"2. It must limit the legislative power over debt and expenditure as stringently 
at least as is proposed in the People's E.esolution, as contained in the memorial of 
the Democracy of Herkimer county to the last Legislature. Except to suppress in- 



COF THE ELECTEE FRANCHISE. 107 



CHAPTER VI. 

OF THE ELECTIVE FRANCHISE. 

We have already seen that human rights proceed from the 
instincts and sentiments proper to man ; that the intellect 
perceives and declares these rights, and that the whole forces 
of the mind acting in union and harmony are arrayed in their 
defence and vindication. 

And because Government is called into being by men living 
in society for the assertion and defence of their common 
rights, every citizen who has an intelligent perception of his 
rights and duties, stands in the relation of principal to 
the Government, which, as to him, performs the office of 
agent. 

surrection or repel invasion, no debt should be contracted without the direct, de- 
liberate assent of the voter. 

"3. It must secure the Common School, Literature, Deposite and other trust 
funds from conversion or destruction by the legislative power. 

" 4. It must make all bankers issuing paper money, individually responsible for 
all demands against them, their corporations or associations, and prevent them from 
dealing in stocks of any kind, and especially the stocks of the State. 

5. It must fix safe and certain limits to the powers of all municipal bodies to 
create debts and burthens on those residing or owning property within their tax- 
ing power, and on all corporations to create debts. 

"6. It must secure the citizen against special legislation and the grant of exclu- 
sive privileges, whereby the favored few are authorized by law to devour the 
many ; and by all the ways and means known to experience, oblige delegated 
power in its legislation to regard that law of Nature and command of God, which 
declares that ' he that will not work shall not eat.' 

11 7. It must limit the officers of government to functions strictly governmental 
and to the smallest number that for a moderate compensation can discharge the 
duty well, and refer their appointment as far as practicable to the people and to 
bodies the nearest and most dependent on and responsible to them. 

" 8. It must strip the Legislative and Executive, as far as practicable, <of the ap- 
pointing power. 

" 9. It must divest the Legislature of all judicial power, and provide courts of 
law and equity, with original and appellate jurisdiction to be held by judges to be 
elected by the* people for a reasonable term of years. These courts of the people 
must have power to decide all constitutional questions, and thus maintain in prac- 
tice the limits set by the Constitution on -delegated power. 

" 10. My last position is, that the Constitution should provide for a Convention of 
the people at least once in twenty years, to correct errors, reform abuses, and make 
all needful improvements more effectually to secure the equal natural rights of 
every man.''' 



108 HUMAN RIGHTS AND THEIR GUARANTIES. 

A man living in the society of his fellows, but without an 
organized State, has devolved on him the functions of Go- 
vernment so far as his individual rights are concerned. He 
declares those rights, determines what amounts to a violation 
of them, and takes his remedy. And when he comes into 
an organized State he acts to the same end precisely, hut in 
concert with his brethren, who are swayed by the same im- 
pulses as himself. I have before maintained that a human 
being in an organized State, does not surrender any rights ; 
and I think I may now assert that, as a general thing, he 
does not yield up the power of vindicating them. His rights, 
and his power to vindicate them, remain; but the manner of 
their protection is changed, and they are now upheld by the 
moral, intellectual and physical forces of the social body. 
Nevertheless, the individual man must be permitted to unite 
his forces with those of his brethren. He cannot, by the 
very laws of his nature, be passive and indifferent, for he re- 
tains all the instincts and sentiments which were attributable 
to him out of society for the vindication of his rights. He is 
irresistibly impelled to their protection. 

In asserting his individuality, and struggling to maintain 
the rule of right for himself and for all men, he obeys the 
paramount laws of his nature. His voice must be heard in 
the State, for he is one of the many persons who constitute 
it. It is for him, as much as for any, that the Government ex- 
ists. Because of his rights was it instituted, and because of 
his sense of justice it maybe maintained. The act of justice 
which the man performed in a state of nature, has become 
transformed into a rule of justice in the State. The actor in 
the one case must be the lawgiver in the other. What was 
right in the instance, is now the rule of justice, and is 
the law. What was good for one man is good for all, 
and shall be upheld for their common benefit ; all shall de- 
clare it, and all shall maintain it, and thus institute and main- 
tain the State. And in such a State there will be little need 
of physical force to keep down the people. Justice will su- 
persede the bayonet. The cheapest and wisest substitute for 
an armed force to subdue the refractory citizens, is a just 
concession to the rights and dignity of man. 



OF THE ELECTIVE FRANCHISE. 109 

Now, in a free State men must assert their rights in per- 
son, or they must appoint agents to act in their stead. In a 
very small society the citizens can attend in person to the 
office of Government ; hut this is impossible in an extensive 
territory, and hence the necessity of their appointing repre- 
sentatives by an exercise of the elective franchise. 

An inquiry arises as to what persons may of right exercise 
this power of appointment, or in whom is the right of suf- 
frage inherent? I answer, in those who have the intelli- 
gence and the moral impulse to prescribe and observe the 
rule of right, or whose organization leads them to act for the 
conservation of rights rather than to aggress upon them. In 
our race this rule will hardly exclude five adult persons in a 
thousand who can read and write. 

The Constitution of the State of New-York, which abol- 
ished very justly the property qualification, still excludes cer- 
tain classes of persons as unqualified voters. 

It requires that the voter shall be of the age of twenty-one 
years, or. at legal maturity, when it is supposed that the phy- 
sical, intellectual and moral man is so perfected, as that he 
is capable of acting his part in the affairs of life. Having 
now passed through the first stages of intellectual culture 
and moral training, he is freed from parental control and sent 
abroad into the world to act for himself. He is now an in- 
telligent, moral being, whose tendencies are presumed to be 
toward truth and virtue. He is deemed competent to take 
part in State affairs ; but he may still be rejected — for, if the 
presumption in his favor shall be rebutted by such acts of 
immorality as lead to conviction for an infamous crime, or one 
involving deep moral turpitude, he is prohibited from voting ; 
because it is thereby established in the most conclusive man- 
ner that he is deficient in that ordinary moral endowment 
and culture which is necessary to enable him to appreciate 
the rule of right. He is shown to be of the class of men for 
whose restraint the State is organized, and he at once be- 
comes a subject rather than a director of the Government. 

The voter is required to have been a resident of the State 
and of the district where he may offer to vote for a certain 

10 



110 HUMAN RIGHTS AND THEIR GUARANTIES. 

period, to the end that he may have a certain acquaintance 
with the public affairs which are to be influenced by his vote, 
and with the candidates for election. Here the right of 
voting is suspended for a period to allow the voter time and 
opportunity to acquire certain information, which it is neces- 
sary for him to possess in order to an intelligent exercise of 
the elective franchise. 

These qualifications are of a moral and intellectual kind. 
And it may be asked whether something further may not be 
justly required of an elector? Let it be admitted that the 
voter's qualifications should be moral and intellectual purely — 
that to take part in Government is but an exercise in morals 
— but doing right on a large scale — that every moral being is 
concerned in this exercise and has a right to participate in it 
at all times, provided he is possessed of the requisite intelli- 
gence and virtue — that this intelligence may be of a very or- 
dinary kind, and that this virtue may consist in freedom from 
gross crime ; still we may deny what this Constitution as- 
sumes, that every adult male citizen who is permitted to 
vote, is to be regarded as of course competent to discharge 
the duties of an elector. And yet we may find it difficult to 
suggest a practical method of testing a man's actual intel- 
ligence, for the purpose of determining whether he is a qual- 
ified voter. But we can inquire into his means of becoming 
enlightened to a certain extent. For instance, it may be 
readily ascertained whether a citizen can read the English 
language with intelligence ; and since that is the language 
of our Constitution and laws, and the knowledge of it may 
be universal, it is worth while to consider whether a citizen 
cannot be rightfully excluded from voting who does not pos- 
sess this means of ordinary intelligence. For myself, I do not 
doubt that to require the elector to read would be both right 
in itself and salutary in its influence, and that it would be in 
harmony also with the spirit of the Constitution of the State 
of New- York, and that of any other which bases the compe- 
tency of the elector solely upon his intellectual and moral 
fitness. 

The advocates of the property qualification suppose either 



OF THE ELECTIVE FRANCHISE. Ill 

that the fact of acquiring and maintaining a certain estate is 
the only evidence of the requisite degree of intelligence and 
virtue in the elector, (of which it cannot be said to be proper 
evidence at all,) or that property alone ought to be represent- 
ed in the State. To the latter supposition it may be an- 
swered, that property is but one of many interests which 
claim the protection of the laws — that every other interest 
is as sacred and as much entitled to be respected as that ; 
and that, therefore, these various other interests must be re- 
presented in the State. 

When the suffrage is universal, property is fairly enough 
represented — for all men have an instinctive sense of pro- 
perty and a natural respect for the right originating from it. 
This innate love of possession is one of many faculties which 
constitute humanity. When, therefore, human nature is 
fairly represented in the State, the right of property is neces- 
sarily represented there, as the whole includes every part* 
But let the representation be of the sense of property alone, 
and only a fragment of humanity assumes to answer for the 
whole. It would be like a representation of any separate 
sentiment or passion — such as a sole representation of Benev- 
olence or Destructiveness, of Ideality or Amativeness. Ac- 
quisitiveness, or a sense of property, has its rights and dig- 
nity, as I have endeavored to show while treating of that sub- 
ject ; but, after all, it is but one attribute of human nature, 
and must be represented in the State in union and harmony 
with all the other pressing claims of humanity. 

We exclude, then, from the exercise of the elective fran- 
chise all those persons whose moral and intellectual defects 
create the principal necessity for Government — who are in- 
competent to perceive their true relation to the State and to 
ordain and to obey the laws ; being rather a class of persons 
needing the guidance and coercion of the Government than 
of the great majority, whose moral and intellectual natures 
are striving evermore for the protection of human rights and 
the maintenance of rational liberty. 

There may be excluded, then : 

1. Those who have not attained to the age of discretion — ■ 
whose moral and intellectual faculties are immature ; 



112 HUMAN RIGHTS AND THEIR GUARANTIES. 

2. All persons whose intellectual perceptions are so disor- 
dered as to depart from the standard of truth and reason ; 

3. All whose moral natures are so defective as that their 
impulses are chiefly in favor of the licentious indulgence of 
their animal desires, or who are without the ordinary re- 
straints of the moral sentiments ; 

4. Those grossly ignorant and unenlightened — say those 
who cannot read. 

All these may be excluded from a participation in Govern- 
ment, since it emanates from the harmonious activity of the 
moral and intellectual faculties of mankind in a state of ma- 
turity and culture. 

But upon what principle is it that woman is excluded from 
all active participation in Government? 

This exclusion is surely not excused by reason of any such 
mental defects as I have above enumerated. At some period 
of her life the advocates of exclusion will concede that she 
attains to the years of discretion — that she has clear intel- 
lectual perceptions — an admirable moral constitution, and is 
susceptible of the highest degree of intellectual culture. 

She is not excluded, then, because she has not the capa- 
city to perceive the true relation and object of Government, 
and the wisdom and expediency of the laws — nor because 
her moral nature is too deficient to feel the obligation of 
them. 

It is not because she has not the same rights as man to be 
protected by the laws — for, having the same mental consti- 
tution she has of course the same rights. Why, then, I re- 
peat, is she excluded from all participation in the business of 
Government ? 

Is it because she consents to the exclusion ? If she with- 
held that consent could she be excluded ? Does she yield up 
her right to interfere with Government because she prefers 
the retreat of the domestic hearth to the thoroughfares of 
the busy world ? Does she surrender this high exercise or 
her moral and intellectual faculties in obedience to the in- 
stincts of a gentler nature ? Is hers the mere moral legisla- 
tion of the fireside — the government of human infancy and 



OF THE ELECTIVE FRANCHISE. 113 

the discipline of youth ? Is hers the mere empire of the af- 
fections — the mild sceptre of persuasive force ? 

Let us examine into this matter, and see if this question 
can be answered. 

It is established by phrenological science that woman is 
endowed with precisely the same mental faculties as man — > 
that, nevertheless, she enjoys some of these in a higher and 
some in a less degree than her sturdy brother. For instance, 
she hath, as a general thing, greater feeling of attachment, 
greater reverence, faith, hope, fear and love of offspring. 
Then she hath less of pride, firmness, combativeness and de- 
structiveness, and oftentimes less of causality and comparison, 
or the reasoning faculty. 

A phrenologist might state the argument thus : 

" 1. In man the brain is larger than in woman — the phy* 
sical system more vigorous, and capable of severer and more 
continued activity. 

" 2. Though the mental faculties are alike in number and 
in kind, both in man and woman, they differ in power con- 
siderably. 

" 3. In woman philoprogenitiveness, adhesiveness, appro- 
bativeness, cautiousness, and veneration, are relatively greater 
than in man. 

" 4. In man amativeness. combativeness, destructiveness, 
self-esteem, (love of power,) firmness, acquisitiveness, and 
the intellectual faculties generally, predominate over the same 
faculties in woman. 

" It may be said that these differences are made by edu- 
cation, and that, under other circumstances, different facts 
would be present; but any doctrine drawn from such a sup- 
position would be based, not upon facts, but upon conjecture, 
and be opposed to present facts. There are, however, facts 
to show that woman's inferiority results, in part, from her 
irrational treatment by man ; but for the most part it would 
seem to be the result of organization. In support of this 
view, beside the generally acknowledged inferiority, may be 
adduced the fact that more women are educated in music 
and painting than men ; yet among the former we find no 
10* 



114 HUMAN RIGHTS AND THEIR GUARANTIES. 

Mozarts, Haydns, Beethovens, or Handels — no Raphaels, 
Guidos, or Titians." 

In view of all these facts it might be asked, are we not 
justified in concluding that women, in the higher mental at- 
tributes, are intended to be subordinate to men ? And would 
not any attempt to place weaker faculties on a par with 
stronger be unsuccessful ? Nothing can, indeed, warrant man 
in being unjust to woman ; but the question is, what is in- 
justice ? 

And again — it may be urged that as government performs 
the office of protection, and, as it will be perceived, that the 
combination of woman's faculties leads rather to a desire for 
protection than the wish to execute it, she naturally leaves 
this function to those whose mental constitutions are better 
adapted to discharge its office. And if she is inclined by the 
constitution of her nature to invite man to take the reins of 
Government, and naturally reposes with a sense of security 
upon his strength, justice and love, then surely it is not an act 
of tyranny in man to yield to her request, and to discharge the 
function of Government without her active interference. 

If it is further considered that the moral and intellectual fa- 
culties and instincts of the two sexes are alike in all respects 
— differing only in degree of manifestation and power — and 
that all laws for human government must be based upon and 
adapted to this common nature ; then it must follow that 
those laws which man ordains in harmony with his own na- 
ture, must be in harmony with woman's also — and she may 
thus be rendered secure and happy by the laws without the 
labor of decreeing them. 

If we could suppose a State composed of the gentler sex 
alone, a case would be presented where the office of legisla- 
tion would necessarily devolve upon woman, and it cannot be 
doubted that it would be readily executed. The same moral 
and intellectual forces, which now give law to mankind, would 
be found actively employed in such a social body, in ordain- 
ing the rules of human conduct. It is possible that there 
would be a departure from the common law of England and 
America in reference to the marital rights, in case such a 



OF THE ELECTIVE FRANCHISE. 115 

" change of their condition" should be contemplated by their 
legal code. It is possible that by way of retaliation they 
would ordain, that in case a man should come among them 
and marry one of their citizens, that the woman should be 
entitled after marriage to all her husband's property of every 
kind — that his moral existence should be merged in hers — 
that her will should be his rule of action — and that, if he 
proved refractory, she should have the power of " moderate 
correction and chastisement ;" that he should be presumed 
by the law to be so much under her dominion, as to be inca- 
pable of free moral action, insomuch that he should be ex- 
cused for any crime commited in her dread presence — that no 
degree of drunkenness or low brutality on her part should 
free him from his marriage thraldom — and that as she took 
him "for better or for worse," he should have the worst of 
it altogether ! 

But I have too much confidence in woman's generosity to 
believe that she would ordain such laws, even in the spirit 
of retaliation — and I have toojmuch faith in the natural jus- 
tice and beneficence of man, to believe that he will much 
longer suffer similar laws in reference to woman to darken 
the pages of human legislation. 

But to return to the argument. It may be further urged, 
that woman is at present substantially represented in the 
councils of State, and that hers are charmed representatives 
— such representative as man never had in the legislative 
halls ; for that those halls are filled with fathers, husbands, 
and sons and brothers. Will not he who has smiled upon 
her infancy, fostered and protected her youth, and viewed 
her with the exulting pride and deep affection of a father, 
ensure to her an adequate legal protection ? Will not her 
chosen husband guard her rights ? Can the son forget the 
mother that bore him — and when he is performing the high- 
est function he can execute in society, will he fail to consider 
and protect the rights of that being who loves him most ? — - 
Will the brother allow his gentle sister's rights to fail of 
protection ? All these questions are answered in woman's 
favor, and hence it is claimed that she feels sufficiently re- 



116 HUMAN RIGHTS AND THEIR GUARANTIES. 

presented in the councils of State when she beholds them 
composed of men ; and that she has an advantage over the 
male constituency, in having herself trained the legislator as 
well as the constituents of government. . 

If, then, woman perceives that her moral and intellectual 
character, and her instinctive wishes are fairly represented 
by man — if from her mental constitution she shrinks from 
public exposure and naturally prefers domestic peace — if 
faith, reverence and affection, peculiarly great in her nature, 
dispose her to confide in man, it is claimed that she naturally 
avoids all interference with State affairs, and that she would 
do greater violence to the constitution of her mind by attempt- 
ing to wield the power of government in connection with 
man, than would ever occur to her from his unjust legislation. 

I believe this is a fair representation of the arguments 
which may be employed in favor of woman's present exclu- 
sion from participation in State affairs. Are they satisfacto- 
ry ? Let us briefly examine them. 

Human rights take their origin in the mental constitution ; 
all men have the same mental attributes, and, therefore, we 
must concede to them the same rights. Although at the same 
time we perceive that one man has far more liberal intel- 
lectual endowments than another, yet we hold that the right 
does not depend upon the degree, but wholly upon the char- 
acter of the mental manifestation. The laws have never dis- 
tinguished between the grades of intellectual endowments, 
with a view to the ascertainment of human rights. Sanity 
is all that the laws looks to either in reference to rights or 
duties. In the social state all sane men of mature age are 
possessed of equal rights, and the laws devolve upon them 
equal responsibilities. He who has the least instinctive at- 
tachment to existence, has the same right to the protection 
of life as he who loves it most. The prodigal's right of pro- 
perty is as sacred to the law as the miser's— the small pos- 
sessions of the poor as the ample stores of the rich. So that 
the greatest intellectual endowments confer no more of the 
rights of humanity than the most ordinary mental capacity — 
and, in the eye of justice, the rights of the humble are as sa» 



OF THE ELECTIVE FRANCHISE. 117 

cred as those of the great. It is of no importance, then, to 
establish woman's mental inferiority, even if it could be 
done, with a view to disprove her rights ; for if we concede 
to her the attributes, we must concede to her also the rights 
of humanity. The arguments which establish human rights 
upon a natural foundation, establish them to be inherent in 
woman as well as in man. But perhaps all this will be con- 
ceded, the argument being not so much against her abstract 
rights as against her power to vindicate and defend them ; 
or, in other words, against her participation in civil govern- 
ment. 

What, then, is the function of government ? It is simply 
the protection of human rights. For whose benefit is it es- 
tablished ? For the benefit of all who have rights to protect. 
We hold that government is the mere offspring of rights, 
which institute it as their means of defence and vindication. 
Hence it will be perceived that woman's rights are as sacred 
to the law as man's, and that her concern with government 
is as great and important as his own. If so, why is she ex- 
cluded from acting in reference to that which so immediate- 
ly concerns her ? She is a rational moral being, endowed 
with rights. Is she not the very being to guard them ? — 
Throughout the sensitive creation, does not each being act 
for himself, in assertion and defence ? But of all others, is 
not a rational moral being especially ordained for self-control 
and self-vindication ? 

We have already seen that government emanates from the 
moral nature of mankind — that the laws have a moral origin 
and aim. Now the moral force which is aggregated in the 
social state proceeds as much from woman's sentiments as 
man's ; her moral endowments being, perhaps, proportiona- 
bly greater than his own. But if they are inferior in some 
respects, it would not aid the other side provided she is mor- 
ally sane — and that she is so regarded is proved by the 
fact, that she is held morally and legally responsible to the 
fullest extent while she remains unmarried. If, then, wo- 
man's moral nature contribute to that moral force in the so- 
cial state from which the laws emanate, she has in her men- 



118 HUMAN EIGHTS AND THEIR GUARANTIES. 

tal constitution the true source of the laws. It now appears 
that there are inherent in woman both rights and the source 
of their protection. Why, then, ought she not to be permit- 
ted to draw upon the resources of her own nature for the pro- 
tection of her rights ? Why ought she not to be represented 
in the legislative body ? 

It is said that it appears from her mental constitution that 
she is ordained to be subordinate to man. This argument, 
extended a little further, would defeat all human liberty. — - 
Slavery could be vindicated and upheld, wherever it should 
appear that the master had the superior mental organization. 
The principle would give the power of government to a se- 
lect few, with the best endowed minds, and exclude the 
great mass of the people from any participation in the affairs 
of State. It would utterly subvert the principles of republic 
canism. The same reasons which operate to establish self- 
government for the mass of mankind, seem also to establish 
the right of woman to be represented in the councils of State. 

I have only to maintain that woman is a rational moral 
being, and disposed to obey the law, in order to establish her 
capacity to vindicate her rights. She must fall below the 
average moral endowments before she can be excluded from 
any moral work which concerns her happiness, or that of the 
community. Government is a moral institution, in which all 
mature and enlightened moral beings under its influence, 
who have an intelligent and abiding love of justice, have a 
right to be actors. 

But, it is enquired, would not any attempt to place weaker 
faculties on a par with stronger ones be unsuccessful ? I an- 
swer, that great success has attended such an experiment in 
this country for more than half a century — since, without any 
nice discrimination as to the comparative strength of the 
mental faculties, we have substantially placed all native adult 
male citizens on a par as to the right of representation under 
our government, ever since its organization. The great mass 
of our male citizens throng the polls of our elections, and 
the general result has been quite satisfactory to the friends 
of free government. 






OF THE ELECTIVE FRANCHISE. 119 

But it is objected that woman lias less of self-esteem, or 
the love of power, and less of combativeness and destructive- 
ness, than man. I answer, that government emanates from 
the higher moral attributes of mankind, such as the sense of 
justice and benevolence — and that self-esteem or the love of 
power is rather to be swayed by these higher sentiments, 
than to control them. The love of power is not the source of 
a free government — it may be of an arbitrary one — and I ap- 
prehend that it has something to do with the exclusion of 
woman from her right to participate in State affairs. Then, 
as to the instincts of physical defence, combativeness and de- 
structiveness — these are to be directed and restrained by the 
enlightened moral sentiments of the social body ; they are 
not to control the business of government, since that is a 
moral concern. The constituency of the government would 
not vary the case so far as the defensive power of the State 
was concerned; man has to do the fighting now — he would 
not have to light any harder under the joint government of 
the two sexes. Nay, I doubt if he would have to fight so 
much, since woman is naturally averse to war, and her voice 
in government would contribute to the preservation of the 
public peace. 

But it is said that man has a better endowment than wo- 
man of the reasoning faculties, causality and comparison. I 
hope I may be pardoned for conceding this to be true, mere- 
ly for the sake of the argument. It is sufficient for my pur- 
pose that woman is conceded to be a rational moral being. — 
But granting to man superior reasoning faculties, these alone 
will not make him a better legislator than woman; he must 
have a better moral endowment, also, for legislation is a 
moral work. But grant him a moral superiority over wo- 
man, (which is unfounded in fact,) then he would be better 
qualified for the business of legislation ; but so also is one 
man better qualified for this work than another, and yet all 
men are alike eligible to the legislative office. Suppose man 
on account of these superior endowments would legislate 
best, that would not exclude woman from voting for the re- 
presentative body. Allow man to be exclusively eligible to 



120 HUMAN RIGHTS AND THEIR GUARANTIES. 

the representative office, the question still returns, by whose 
votes is he to be chosen ? and ought not woman at least to 
participate in the exercise of the elective franchise? 

But it is further maintained, on the other side, that woman 
is already sufficiently represented in the halls of legislation. 
Since, her rights being the same as man's, and her mental 
constitution being also like his, those laws which man or- 
dains for the protection of rights, and which harmonize with 
his own nature, must afford to her all the protection which 
she can require. This argument would support a very limi- 
ted suffrage of the male sex. It could be urged with the 
same justice in excluding nine-tenths of the male citizens 
from the exercise of the elective franchise. For instance, if 
the Constitution prescribed as a requisite qualification for a 
voter, that he should own a freehold estate worth ten thou- 
sand dollars, the elective privilege would be exercised only 
by small portion of our citizens — and yet, as the voters in 
this case might be supposed to support laws in harmony with 
their own mental constitutions, which are the same as those 
of the non-freeholders, it might be said that the laws would 
still be in harmony with the wants and wishes of the exclu- 
ded class. The number of voters, on the same principle, 
might be diminished indefinitely, until a pure aristocracy 
should be established. It can scarcely be necessary to em- 
bark in a labored refutation of principles which lead to such 
a result. The experiment of universal suffrage for the male 
sex (excepting minors and criminals) has been successfully 
made in many of the States of the American Union, and but 
few enlightened Americans now oppose its justice or expe- 
diency. 

But is it true that no adverse interests spring up between 
man and woman ? Let us see. " As to all in a single state, 
perhaps it may be asserted that a greater harmony exists, but 
how stands the case between those in the married condition? 

The laws of government control this relation, and declare 
the rights and obligations pertaining to it. The first question 
which the laws settle, is whether there shall be any supre- 
macy in the case, and they declare not only that such su- 



OP THE ELECTIVE FRANCHISE. 121 

premacy shall exist, but also that it shall pertain to the hus- 
band. Now it strikes me, that woman is entitled to be heard 
on this point — since it is clear to my mind, that notwithstand- 
ing her great reverence, she revolts against this supremacy. 
If she pleases to accord it to him after fair argument, on ac- 
count of his superior love of power, and his larger endow- 
ment of combativeness anddestructiveness — then let him have 
dominion over her — but it seems proper that her views and 
wishes should be represented in the Legislature, before she 
can be bound by the laws to obey her husband's will. In 
this supremacy is involved the delicate power of " correction 
and moderate chastisement " — and it might be deemed fair 
perhaps to consult her as to her willingness to submit to these 
polite demonstrations of conjugal authority. 

Again- — in the married state, the woman has interests ad- 
verse to her husband, in regard to the right of property — as 
to what disposition shall be made of property owned by her 
at the time of her marriage, and as to what shall be her 
share in the joint acquisitions afterwards. Upon these points, 
the greater love of power, and greater acquisitiveness of the 
husband, may need some restraint from the laws, and woman 
may require protection from these superior instinctive im- 
pulses of man. He has so far legislated on this subject, pret- 
ty much after his own way, insomuch that woman's rights in 
this respect seem to require vindication at her own hands. 

Again — as to what shall be proper causes of divorce ? 
woman's happiness is greatly involved in this question — and 
great injustice may be done to her by the selfish legislation 
of the male sex. 

And lastly — woman has greater love of offspring than man, 
and in case of voluntary or legal separation from her hus- 
band, the law regulates the custody of the children of the 
marriage. In this question she manifests the most intense 
anxiety— amounting to positive agony — as recent cases in this 
country have abundantly shown. Ought she not then to have 
a voice in the enactment of all laws, affecting the care and 
custody of her children, since they so deeply concern her hap- 
piness ? 

11 



122 HUMAN BIGHTS AND THEIR GUARANTIES. 

In all these cases of marital rights, her interests and wishes 
are too sacred to be disregarded — and k is not difficult to per- 
ceive, that the laws which man may ordain on this subject, 
under the influence of his selfish feelings, may do violence to 
the nature and rights of woman — and that, therefore, she 
ought to participate to the same extent as man in their enact- 
ment. 

I trust that it is now manifest, that if woman's mental 
characteristics are essentially the same as man's, the same 
reasons which upheld universal suffrage for the male sex, 
must extend it also to the female. But it is not admitted that 
the sum of her mental character is the same as man's. It is 
claimed that while the intellectual and moral forces of her 
mind are the same, yet that their peculiar combination and 
relative strength distinguish her from man in many striking 
particulars. Suppose then the sum of her character to vary 
essentially from man's ; admit her to have peculiar views, pe- 
culiar interests and moral wants ; this but enhances the ne- 
cessity for a peculiar representation of her moral interests in 
the Legislature. Man, then, cannot properly represent her, 
he cannot fully appreciate her wants ; not feeling them him- 
self, he cannot answer them. This would entitle women not 
only to vote, but by their votes to elect a separate branch of 
the Legislature. They would have a separate election of 
their own peculiar representatives, from their own sex, who 
would constitute a separate branch of every legislative body. 
There seems to be no escape from the claims of woman to 
the full rights of citizenship, whether she is considered as 
possessing the same nature with man or one peculiar and dif- 
ferent. In the one case, she can claim to exercise the elec- 
tive franchise of common right, and in the other, from a pe- 
culiar necessity. 

Should the experiment ever be made, prudence might sug- 
gest that the single woman who paid taxes, should be first 
enfranchised — and that after the experience of a season all 
adult single women should follow. And if the experiment 
thus gradually and cautiously made, should be attended with 
no public mischief, then the whole sex should receive their 



OF THE ELECTIVE FRANCHISE. 123 

full enfranchisement, — if the pride of the Anglo-Saxon man 
could be made to concede so much.* 

* There is something wrong in the case, when a cotemporary can write without 
offence to truth as follows : 

" Are women in this world of ours not relatively depressed ? Are English 
women quite at ease 1 Perhaps to them there is justice in the social system that 
tears the infant from the mother's breast to give it to the debauchee ; that makes 
It impossible for any unprotected woman to pursue a calling without insult ; for a 
servant maid to stir from her master's door, or a milliner's girl to pass to and from 
her hard occupation, without the salutation of some genteel scoundrel or another ; 
that in the higher rank, hunts down every woman who dares to think differently 
from her master, who sneers against her fame, as if the female mind could not stir 
without wallowing in lust ; thatsubdues the wife to the very quality of her ' baron ;' 
and makes the maid an automaton of music, dancing, drawing and embroidery, 
a living negation of excellence in the best accomplishments, and brainless beyond 
them — taught to believe that for one half the human race, the highest end of civil- 
isation is to cling upon the other like a weed upon a wall." J 

£ Westminster Review, Oct. 1841. 

The views presented in this essay, were drawn up without any considerable ac- 
quaintance with the suggestions which have been thrown out by other writers on 
this subject. I have discussed the question briefly, and by the light of that men- 
tal philosophy, which has guided me throughout. 

Since this was written, a number of the Westminster Review, for January, 
1841, has fallen under my notice, which contains an able article upon "Woman and 
her social position," from which I make the following extracts : 

" We are indeed fully persuaded that the progress of civilization will discern, 
nay, has discovered many faults and defects in the laws which concern women, 
and it would be hard indeed to adhere to the wisdom of our ancestors only with 
regard to them." 

Again, 

" But if we are now arrived at such a pitch of civilization, ' as allows of women's 
possessing any of the privileges of citizens, we think it highly desirable that they 
should enjoy them, wherever they are singly incurring the liabilities or perform- 
ing the duties of citizens, we would say that they had a right to enjoy them ; for 
rights and duties have to our minds a necessary connection. Ever since the Re- 
form Bill — that era of better hope — it has appeared to us a needless if not preju- 
dicial inequality to exclude women altogether from representation. 'In the Eng- 
lish Reform Act,' (says Mr. Baillie, who has devoted a chapter in his Rationale of 
Representation, to consider very seriously and philosophically the propriety of the 
limitation of the elective franchise by sex, and has given it strongly as his opinion 
that there should be no such limitation.) ' In the English Reform" Act, a very small 
concession without disturbing the legal relations in which the sexes stand to each 
other, would have saved the appearance of injustice to females. 

"No evil in fact could have arisen from placing men and women on such an 
equality in regard to the franchise as the present system of law would admit. — 
Wives and sisters and daughters, living under the same roof with husbands and 
fathers, and brothers, would have been excluded, not on the ground of sex, but 
on account of not being householders, sharing in this respect the condition of sons 
residing with then* fathers and of other mere lodgers. It would have been only 
widows and single women keeping house, or possessing the requisite amount of 
property, that could have been entitled to vote, yet it is difficult to conceive the 
shadow of a reason why they should be deprived of the privilege, except the ' tu- 
multuous proceedings which are the unruly progeny of unskilful arrangements.' 
And the reviewer adds : ' Compared with the general community, such persons, 
(few in number, to be sure) have yet a direct interest in the economy of public 
establishments, in the security of property, in the administration of justice, in a 
word, in all the objects of government.' While they contribute to its support, and 
are not exempted by the weakness of their sex from paying taxes, it seems to us 
a plain case that they should have a vote in the management of the revenue, or 
at least be able, like other loyal subjects and citizens of the same grade in society, 
to ' lay this flattering unction to their souls ;' and we agree with Mr. Baillie that it 



124 STTJVUN RIGHTS AND THEIR GUARANTIES. 






CHAPTER VII. 

OF RIGHTS EMANATING FROM THE SENTIMENTS AND AFFECTIONS. 

Man is endowed with certain propensities which impel 
him to a prompt and vigorous defence of his person and his 

might be made quite consistent with female delicacy to register and go to the polls ; 
as consistent at any rate, as to go to the cess olhco, or to receive the visits of the 
tax-gatherer or rate-collector. Any objections that we have heard against permit- 
ting females who possess the requisite qualifications is, to enjoy the first and lowest 
degree of political power, have appeared to us extremely slight, if not wholly 
groundless. The possible sway of male relations has been made an objection. — 
At most, this could only neutralize the biased votes of females, and, acting indif- 
ferently on all classes, could not be turned to the advantage of one party more 
than another. This objection was urged by Mr. Fox in the following language : 

"In ail the theories and projects of the most absurd speculation, it has never 
been suggested that it. would be advisable to extend the elective franchise to the 
female sex ; and yet justly respecting as we must do the mental powers, the ac- 
quirements, the discrimination, and the talents of the women of England, in the 
present improved state of society — knowing the opportunities which they have 
for acquiring knowledge — that they have interests as dear and as important as our 
own — it must be the genuine feeling of every gentleman who hears me, that all 
the superior classes of the. female sex of England must be more capable of exercising 
the elective franchise with deliberation and propriety, than the uninformed individu* 
als of the lowest class of men, to whom the advocates of universal suffrage would ex- 
tend it. And yet why has it never been imagined that the right of election should 
be extended to women 1 Why ! but because by the law of nations, and perhaps 
also by the law of nature, that sex is dependent on ours — and because, therefore, 
their voices would be governed by the relation in which they stand in society. 

" This argument," says the reviewer, " good in the main, is not however strictly 
applicable to the class of women whose rights to representation we are disposed 
to advocate, for of such it cannot be said that they are directly influenced, any 
more thai 1 they are represented by men. It must be observed that Fox did not 
admit the objection of incapacity, the only remaining one we can think of, be- 
sides a general alarm of danger to the state, and detriment to one's hearths and 
altars, which we do not feel it necessary to combat. We do not expect that the 
greatest legislators, or most profound politicians, will be found among female house- 
holders, after the elective franchise has been extended to them. The Reform 
bill, however, does not proceed on the supposition that the knowledge or wisdom 
of a statesman is required in an elector, but on this, that within certain limits of 
intelligence and opportunities of instruction, every one understands his own in- 
terests best, and has a right to let them be known by the fittest deputy he can find. 
Now, whenever we see" a woman, able by her own exertions, unassisted by the 
stronger arm or head of man, to place herself in a situation which would entitle 
him to have a vote in the choice of a member of Parliament, we think it clear that 
such a woman is not without the necessary qualifications. Granting between a 
lady and her coachman an original difference of capacity (in favor of the latter 
for the affairs of government) we think it is making too much amount of it in its 
undeveloped state to give him the right and withhold it from his mistress. 

"The argument of incapacity loses much of its force at present, when a woman 
sits at the helm of government in England." 

The Reviewer quotes from an article in the Monthly Repository as follows : 

"Is it not strange that the egregious anomaly should have been felt of institu- 



EIGHTS OF THE SENTIMENTS AND AFFECTIONS. 125 

rights; and in the absence of a superior protection he has 
always the right to defend himself. Laws for the protection 

tions which sometimes invest a woman, educated in very unfavorable circum- 
stances, with the state and amplitude of supreme political authority, and which 
nevertheless uniformly deny to woman, though trained in the most favorable cir- 
cumstances, the exercise of the lowest and simplest political function, that which 
is essential to political existence, the elective franchise. In the common opinion 
of common statesmen, the fitness of women to vote for an individual's elevation 
to the temporary dignity of a legislator in the House of Commons, is a mere joke ; 
yet her naming scores of persons legislators for life, and their heirs legislating too, 
through all generations, is an essential portion of that perfection of ancestral wis- 
dom under which we live. She is vested with the entire power of the state — or 
not entrusted with its meanest portion." 

The Reviewer says, in another place : " The political non-existence of women 
all over the world is a very certain fact ; except in criminal cases, and oftenest as 
culprits, the law scarcely recognises in them any individual existence. This, as 
Miss Martineau observes, seems hard. In no country, however, but America, are 
they, as respects political or social rights, much worse off* than a large portion ol 
the community, male and female, who are liable to be put in prison, transported, 
hung, as well as married and buried, according to laws, with the making of which 
they have had nothing to do. But we do not quite like her own reproachful tone, 
as if, because the democrats of America are as despotic toward women as the 
aristocrats of the old world, there were in man a constant desire to do woman 
wrong, in woman a base inclination to give up her rights. 

"Miss Martineau bestows much scornful pity on the women of New-Jersey, for 
having given up without a murmur, the right of voting at State elections, after 
they had been inadvertently suffered to do so, &c. 

" Should the claims of women to represent be any where admitted, we incline to 
think they will be so first in our old aristocratic, over-taxed, over-populous, broken 
down country of England, rather than in young, democratic, thriving America, 
where representatives in husbands maybe easily obtained, and where 'helps' can 
with difficulty be procured." 

This prediction may be verified if England's Queen shall accomplish as much 
in behalf of her sex as the renowned Isabella of Spain. I quote a passage from 
Prescott's Ferdinand and Isabella, Vol. 2, page 196 : 

4< In this brilliant exhibition those of the other sex must not be omitted, who 
contributed by then intellectual endowments to the general illumination of the 
period. Among them, the writers of that day lavish their panegyrics on the Mar- 
chioness of Monteagudo, and Dona Maria Pacheco, of the ancient house of Men- 
doza, sisters of the historian Don Diego Hurtado, and daughters of the accom- 
plished Count of Tendilla, who, while Ambassador at Rome, induced Martyr to 
visit Spain, &c. This illustrious family, rendered yet more illustrious by its mer- 
its than its birth, is worthy of specification as affording altogether the most re- 
markable combination of' literary talent in the enlightened Court of Casteli. 

'• The Queen's instructor in the Latin language was a lady named Dona Beatrice 
de Galindo, called, from her peculiar attainments, la Latina. Another lady, Dona 
Lucia de Medrano, publicly lectured on the Latin Classics in the University of Sala- 
manca. And another, Dona Francisca de Lebrija, daughter of the historian of that 
name, filled the chair of PJietoric with applause at Alcald. But our limits will not al- 
low a further enumeration of names, which should never be permitted to sink into 
oblivion, were it only for the rare scholarship — peculiarly rare in the female sex — 
which they displayed in an age comparatively unenlightened. 

" Female education in that day embraced a wider compass of education in refer- 
ence to the ancient languages than is common at present, &c. I am not aware, 
however, that it was usual for learned ladies in any other country than Spain, to 
take part in the public exercises of the gymnasium, and deliver lectures from the 
chairs of the Universities. 

" This peculiarity, which may be referred in part to the Queen's influence, who 
encouraged the love of study by her own example, as well as by personal attend- 
ance on~the academic examinations, may have been also suggested by a similar 
usage among the Spanish Arabs." 



126 HUMAN RIGHTS AND THEIR GUARANTIES, 

of humanity emanated from man's superior nature, and 
whenever it is possible they ought to furnish a full measure 
of protection, rather than leave any man to passionate and 
vindictive self- defence. The most perfect human laws, and 
their most rigorous administration, will, however, always 
leave a man exposed in society to aggression, which he may 
properly resist by force. The law cannot always shield his 
person from the ruffian's attack, although it may punish the 
aggressor after his mischiefs have been perpetrated. It can- 
not secure one's property from theft or embezzlement, al- 
though it may award restitution and restrain the liberty of 
the offender. So that in the best ordered society a man will 
have occasion to draw upon his defensive faculties, where 
these can avail him, to prevent injuries to his rights. One 
of the legitimate offices of the instinct of combativeness is, 
to oppose force as a means of preventing injury. If it go 
farther, either in or out of society, it offends the superior 
sentiments. Under the control of the moral forces of the 
mind, it acts for defence and not for vengeance. There can- 
not be a right of vindictive self-redress, since this implies 
the supremacy of the animal instincts over the moral and in- 
tellectual powers of the mind, which is to reverse the order 
of nature. Conscientiousness was ordained, under the en- 
lightenment of the intellectual faculties, to determine be- 
tween the accuser and the accused — between him who de- 
mands and him who withholds the right. From his very 
constitution, as we have seen, man must etxist in the social 

Even at present, in England, the idea of women's holding official station, is not 
so strange as in the United States. The Countees of Pembroke, Dorset and Mont- 
gomery, had the office of hereditary Sheriff of Westmoreland, and exercised it 
in person. At the Assizes at Appleby she sat with the Judges on the Bench. 

In a reported case, it is stated by Counsel, and substantially assented to by the 
Court, that a woman is capable of seizing in almost all the offices of the kingdom ; 
such as those of Queen, Marshall, Great Chamberlain, and Constable of England, 
the Champion of England, Commissioner of Sewers, Governor of a "Work House, 
Sexton, Keeper of the Prison, of the Gate House of the Dean and Chapter ot 
Westminster, Returning Officer for Members of Parliament, and Constable ; the 
latter of which is in some respects judicial. The office of Jailer is frequently ex- 
ercised by a woman. 

In the. United States a woman may administer upon the estate of her deceased 
husband — and she has occasionally held a subordinate place in the Post Office 
Department — she has therefore a sort of legal post-mortem and post-mistress noto- 
riety — but with the exception of the privilege of handling letters of administra- 
tion and letters mailed, she is the submissive creature of the old common law. 



RIGHTS OF THE SENTIMENTS AND AFFECTIONS. 127 

state, where he can always have an appeal for justice to his 
impartial brethren. They immediately sympathize with the 
injured, and are impelled by their moral feelings to redress 
his wrongs. If in a moment of excitement he exceed the 
limit of defence and take vengeance, he offends against the 
moral feelings of his brethren, and wounds his own superior 
sentiments so that he feels the agony of remorse after they 
regain their just supremacy of his mind. Self-redress, then, 
by way of taking vengeance upon an aggressor, is not a natu- 
ral right but a natural wrong ; and man in society does but 
obey the true law of his nature when he looks to the social 
body for the redress of injuries. In the prevention of wrongs 
the animal powers of the individual may be properly exert- 
ed, while in the redress of them the moral and intellectual 
powers of the social body must have exclusive sway. Benev- 
olence, not less than justice, is all-pervading in human so- 
ciety, and dictates the benign sentiment of mercy and good- 
will to all the sensitive creation. It disposes man to desire 
the prevention of offences, as it shrinks from their punish- 
ment, and looks in kindness even upon the vilest offender. 
It infuses a spirit of philanthropy in the legal code, tempers 
justice with mercy, and sheds a tear for the victim of the 
offended laws. It would not, nevertheless, defeat justice — 
but would rather prevent the occasion for its exercise ; and 
under its blessed influences the social body is stimulated to 
make provision for the prevention of wrong, and to inflict 
what is denominated punishment only as a means of pr e- 
vention. 

But such is the nature of man that an offence against any 
of his rights so disturbs the serenity of his mind and its har- 
monious action, and produces such a mingled excitement of 
his sentiments and passions, that unless the laws afford him 
redress he will obtain it for himself, and will oftentimes ex- 
ecute vengeance upon the offender, which is the product of 
conscientiousness, combativeness and destructiveness, acting 
in combination. In the act of self-redress, Justice often ar- 
rays herself in a ruffian's garb and uses the assassin's wea- 
pons. Vengeance comes of enraged justice; and greater 



128 HUMAN RIGHTS AND THEIR GUARANTIES. 

wrong may be done in the passionate redress of injuries ti»«in 
in their perpetration by the first offender. But this Wrr/ng 
proceeds from the disturbed and inharmonious activity cf 
man's innate faculties, and laws emanating from and adapted 
to the harmony of his mental forces must exclude so great 
an evil in human society. How shall this be done ? By a 
legal recognition of every human right, and guarantying to 
each as far as possible a full and complete measure of pro- 
tection. Humanity will forever cry aloud for the protection 
of her rights and for the redress of injuries ; and when hu- 
man laws fail to mete out justice to man, be not astonished 
if he take vengeance instead. It is the duty of the State to 
take effectual measures for the prevention of crimes and for 
the redress of injuries — and if it fail to do this the aggrieved 
party will be strongly inclined to supply the omission ; but if, 
while smarting under a sense of injury, he act out this incli- 
nation, he will do that fur which he himself will be punishable, 
and thus he will conceive himself to be the victim of three 
wrongs. The first comes from society — a wrong of omission 
in not protecting his infringed rights ; the second, an actual 
wrong from the individual aggressor ; and the third, the out- 
rage of society in mal-treating him for obtaining that redress 
for himself which it had failed to afford him. He will con- 
ceive himself to be the victim of society, and not unlikely 
will be a perverse citizen ever after. Let me illustrate this 
with a few examples. 

The law leaves the citizen perfectly unprotected from the 
rudest insult by simple speech. His truth, integrity, honor 
or courage, may be called to nought ; the honor of his wife 
or daughter may be openly impeached by the rudest assail- 
ant — and thus his pride, his approbativeness and feelings of 
domestic attachment may be wounded in the highest degree, 
yet the law leaves him to take care of himself. The instincts 
of combativeness and destructiveness, however, do not desert 
him, but rush to the aid of these wounded feelings and in- 
flict instantaneous personal chastisement upon the offender. 
Thus an assault and battery is committed, and Justice re- 
moves the bandage from her eyes and beholds this as the first 



BIGHTS OF THE SENTIMENTS AND AFFECTIONS. 129 

Wrong ! She declares that no mere words can justify a bat- 
tery, and that the man beaten hath an action for his damages 
against him who smote him ; and moreover, that so much 
does the law abhor bodily strife and desire peace among men, 
that the battery is subject to further punishment as a mis- 
demeanor ; so that he who smote the rude and insolent ac- 
cuser must pay a fine to the State for the offence, and be im- 
prisoned in a common jail for a period fixed by the same just 
law. What effect has such a sentence upon the prisoner ? 
He very naturally desires to inflict chastisement upon the blind 
goddess herself, conceiving that she has done him far the 
greatest injury in the case. 

But let us suppose a far more serious case of wrong — that 
of a husband injured in the most sacred of the marital rights. 
He detects the destroyer of his peace, and kills him on the 
spot. This killing is pronounced manslaughter, for which 
the injured husband is condemned to the state prison at hard 
labor for a term of years. But suppose that he refrains from 
killing at the instant, and challenges the author of his ruin 
to mortal combat. The coward and villain takes the chal- 
lenge to the police, and the injured husband is arrested for 
merely sending the challenge, and condemned to prison as a 
felon. But suppose the wrong-doer to accept the chal- 
lenge ; they go to the field, and the husband speeds a bullet 
to his heart ; he dies, and in the eye of the law he is a mur- 
dered man, and the broken-hearted husband is pronounced a 
wilful murderer, and expiates his offence on the gallows ! What 
ought he to have done ? That only which the law allowed 
him to do. He should have left his house with great equa- 
nimity of mind, as soon as he discovered the damning deed 
which stung him with the deepest agony ; he should have 
abstained even from giving vent to his feelings by words, 
lest he should have used profane oaths, which the laws pun- 
ish by a fine. He should have gone to a gentleman of the bar, 
coolly stated his case, and received for answer, that as there 
was no witness to prove the wrong, the law could afford no 
redress ; but in case of a witness, then he could have his ac- 
tion, and recover a compensation in money for this wrong !— 



130 HUMAN RIGHTS AND THEIR GUARANTIES. 

Yes — by our law money can atone for the deepest and dark- 
est of domestic wrongs ; and when the offender shall have 
paid the sum ordained, he may go about at noon-day, serene 
and self-satisfied, as a gentleman and good citizen! Is it 
well to mock the injured, in such a case, by treating this 
wrong as one which can be atoned for by money ? Retain 
this sort of redress, if you please, for that order of men who 
will stoop to receive it ; but do not allow a wrong which de- 
stroys the happiness of a human being for life to pass with 
lighter condemnation than the least offence to the right of pro- 
perty. The stealing of property to the value of twenty-five 
dollars is treated as an infamous crime, and is punishable by 
imprisonment in the state prison for a term of years ; and yet 
how slightly is man's happiness affected by the injury thus 
redressed ! We have statutes for the protection of animals 
from cruel and inhuman treatment, making it a misdemeanor 
punishable by fine and imprisonment, while human affections 
are exposed to the deepest wounds without the slightest 
shield for their protection. The peace of families is exposed 
to the worst arts of profligacy. The parent may perceive 
the honor of a daughter to be lost ; but the law, which took 
its origin in a barbarous age, and which recognizes in this 
no other injury to the parent than the loss of the daughter's 
services, affords him only a compensation in money for that 
loss — to which may now be added something more, if the jury 
please, for the wounded feelings of the parent. Against the 
form of the remedy the injured party first revolts, and next 
against the idea of a compensation in damages. Those want- 
ing all proper appreciation of the wrong, may perhaps be 
content with the damages ; but those who have the keenest 
sense of the injury scorn your legal remedy, and go unre- 
dressed of the law. In either event, the wrong-doer escapes 
conviction for the moral offence of which he has been guilty, 
and enjoys the rights and privileges of a good citizen. If 
his deed were treated as a felony, he would scarcely fall be- 
low his victim. 

Mr. Chitty, in his learned and admirable work upon Med- 
ical Jurisprudence, notices a case of this character, where 



EIGHTS OF THE SENTIMENTS AND AFFECTIONS. 131 

the defendant insultingly sent the £1000 damages awarded 
by the jury to the injured father, by a livery servant with 
his compliments, and that he would with pleasure pay him 
another £1000 if he would send him his second daughter. — 
If this wretch had shared the fate of those who offend 
against the rights of mankind in a far slighter degree than 
he had done, what servant would have worn his livery or de- 
livered his bitter taunt ? And yet society consents to cherish 
such a man as a good citizen — to yield him all the privileges 
of citizenship — to allow him a participation in the moral 
control of the State — and would scarcely hesitate to promote 
him to office, while the petty swindler is condemned to the 
dungeons of a prison. Nay, more ; if the injured father 
should take such vengeance upon him as his feelings should 
prompt, he would become a criminal himself, and forfeit his 
liberty or his life for yielding to the impulses of his nature in 
vindicating his honor and his happiness, where the law had 
failed to protect them. 

If the social body leave a man unprotected in any of his 
rights, as to those rights and their vindication he must be 
left to his natural remedies, I do not contend that an unpro- 
tected man has a right to execute vengeance upon the 
wrong-doer; but I insist that it is well known that a portion 
of mankind will be prompted by their natural impulses to do 
so ; and it becomes a grave question whether the State, hav- 
ing neglected a due measure of protection, has acquired the 
right to molest the individual who resorts to self-redress. It 
seems to me that the social body can only complain of him 
who redresses a wrong by an act of vengeance, when they 
can point to the law and say to the offender, ** here was your 
redress ; had you appealed to our laws, your rights would 
have been fully vindicated — but having chosen vengeance 
when justice was within your reach, we condemn you." — 
The taking of vengeance is a moral offence, in the absence 
of any human law for the protection of rights ; but I appre- 
hend it is not an offence of which the social body can take 
any cognizance, but it must be left to the Creator's laws. 

It would follow, then, that society, in order to acquire the 



132 HUMAN RIGHTS AND THEIR GUARANTIES. 

right to call in question an act of self-redress, must first have 
afforded a due measure of legal protection to the right, whose 
infringement occasioned the act of vengeance. 

" As the State," says Vattel, " does not permit an individual to pursue, 
with arms in his hands, the usurper of his fortune, only because he may 
obtain justice from the magistrate ; so if the sovereign will not allow him 
to draw his sword against him from whom he received an insult, he ought 
necessarily to take such measures, that the patience and obedience of the 
citizen insulted shall be no prejudice to him. The society cannot deprive a 
man of his natural right of making war against an aggressor, without fur- 
nishing him with other means of securing himself from the evil his enemy 
would do him, for in all those occasions in which the public authority cannot 
lend us its assistance, we resume our primary right of natural self- 
defence." 

Wherever the social body neglects to protect the human 
sentiments and affections, it must leave the lacerated victim 
of another's wrongs to wreak bis own vengeance upon the 
offender ; and if assaults, duels and assassinations ensue, no 
statute can properly denounce its penalties upon the vindica- 
tor of his rights, and all that the courts can inquire into is, 
whether there was such a provocation as ordinarily produces 
the consequences which happened ; if so, and such provoca- 
tion was not recognized as an offence by law, then the law 
shall take no notice of the consequences ! This would pro- 
duce a dreadful state of society, but not a state much more 
to be dreaded than one which allows the holiest sentiments 
and affections of man's nature to be wounded with impunity, 
the most flagrant wrongs to be unprevented and unredressed, 
and yet denounces the severest punishments upon the man 
who, smarting under a sense of the deepest injury, takes ven- 
geance upon the wrong-doer. 

I pray the reader not to misconstrue my meaning. I am 
not the advocate of either of these conditions in society, but 
most heartily condemn both as an entire departure from the 
true rule of social organization. 

My appeal is for humanity. I demand for it full and per- 
fect protection by the laws of society ; and I demand that 
the human sentiments and affections shall have a measure of 
protection commensurate with their dignity and importance 
to man's happiness ; and I have only designed to point out 



RIGHTS OF THE SENTIMENTS AND AFFECTIONS. 133 

the injustice of society in neglecting a just and general pro- 
tection to all the rights of man. 

" Although it will be admitted," says Mr. Chitty, " that the true object 
of law ought to be security to individuals of the full enjoyment of those 
endowments with which the Almighty has blessed mankind, yet the 
English law is singularly defective in the protection of the natural pas- 
sions and feelings from injuries. It in general interferes only where there 
has been a visible bodily injury, inflicted by force or poison, while it 
leaves almost entirely unprotected the whole class of the most malignant 
mental injuries and sufferings, unless in a few cases, where, by descend- 
ing to fiction, it sordidly supposes some pecuniary loss, and sometimes 
under that mask, indirectly, and contrary to its own legal principle, affords 
compensation for wounded feelings. Thus a father cannot in that char- 
acter sue for an injury inflicted on his child, and on his own domestic 
happiness ; nor can he punish the vilest seducer of his daughter, occa- 
sioning his most agonizing mental sufferings, and her rain, unless the 
facts will sustain the allegation that the daughter was a servant of the 
father, and that by reason of the seduction he lost the benefit of her ser- 
vices. Nor is there punishment for many verbal slanders, undermining 
the character of the person calumniated, and occasioning the most dan- 
gerous illness, or even death." 

Mr. Chitty further notices that the killing of a person by 
fright or alarm is not a felonious murder, but at most a mis- 
demeanor ; and that in point of law it is not murder to work 
on the imagination so that death ensue, or to call the feel- 
ings into so strong an exercise as to produce a fatal malady ; 
and he concludes that the British law is entirely defective in 
not punishing, corporeally, those who wilfully occasion inju- 
ries to the passions, emotions, affections on feelings of another. 

The reader may remember a most distressing case of sui- 
cide, by a young gentleman of the city of New- York, some 
years ago, who rushed to the top of his house, which was 
three stories high, and precipitated himself thence upon the 
pavement below, thus occasioning his awful and instantane- 
ous death. A few weeks before this most-melancholy event he 
was in perfect health, mingling with his fellow-citizens, 
having their highest respect, and the attachment of many 
warm and devoted friends. His domestic character was a 
model of the most affectionate kindness and perfect devotion 
to the happiness of a mother (his only surviving parent) and 
his brothers and sisters. His charities were liberal ; no wor- 
thy applicant for aid ever went away empty from his door. 
He was generous even to a fault. His integrity was of the 
12 



134 HUMAN EIGHTS AND THEIR GUARANTIES. 

highest order, and he preserved the most unsullied honor ; it 
was his soul — his life. In fine, he was one of the noblest 
young men I have ever known, and one whose memory I 
shall always cherish to the latest hour of my life. . I would 
that it were divested of the story of his unhappy fate. 

A few days before his melancholy death he called upon 
me, under great anxiety of mind, and stated to me, more as a 
friend than as his professional adviser, the details of a con- 
spiracy formed to extort money from him, by several aban- 
doned people in this city, one of whom had sought his ac- 
quaintance to ask charity, and who had received pecuniary 
relief at his hands. 

The conspirators had a scurrilous paper in their interest, 
and a threat of a libelous publication had been made in its 
columns. This was his concern at the time of his visit to 
me. I inquired into the whole matter with great interest 
and anxiety. I know the truth of his case, and I know to a 
moral certainty that there was not a shadow of just founda- 
tion for the least censure upon his fair fame. I advised him 
to treat the conspirators with utter contempt, and to pay 
them not the least attention. He soon after received from 
some lawyer, who read the laws but to violate their spirit, 
and whose moral nature was attuned to the work of mis- 
chief, further intimation that the conspiracy was to be con- 
summated by a suit at law. He brooded over this matter till 
sleep and rest forsook him. The scurrilous print came out 
with its brutal libel, and its victim fell beneath the stroke. — 
When he next called upon me, which was the day after the 
publication, I think, his whole appearance was that of a ma- 
niac, and his wild exclamations, his intense mental suffering, 
amounting to the most dreadful agony, baffled description. — 
Alas ! I could not soothe his wounded spirit — he was taken 
to his home, and when I inquired after him at the next op- 
portunity, I learned his awful death. This man was mur- 
dered, and his murderers live unmolested by the law. 

" If," says Mr. Chitty, " legislators had sufficiently considered the con- 
nection of mind with external objects, and that the miseries and sufferings 
of the mind may be infinitely greater than those of the body, adequate 
punishments would have been provided for many mental injuries, which 



BIGHTS OF THE SENTIMENTS AND AFFECTIONS. 135 

at present can only be visited by the censure of mankind, or, at the most, 
by inadequate discretionary punishment, limited to fine and imprison- 
ment."* 

The reflections of this profound jurist upon the British law, 
are equally applicable to our own. The same defects exist 
in our legal code ; the most sacred rights of humanity cry 
out in vain for protection to either British or American laws. 
Nay, more; the legislatures of both countries have hitherto 
treated with derision and contempt the petitions which have 
been* presented to them upon the subject of laws for the pro- 
tection of human sentiments and affections. There were 
presented to the Legislature of the State of New- York, at 
the last session, sundry petitions from ladies in one or more 
of the counties, praying that the grossest violation of the 
marital rights, and the vilest infriDgement of the domestic 
peace, might be legally recognized as crimes. These grave 
legislators ill concealed their mirth at this outbreak of hu- 
manity. It was a capital joke, and made them merry for a 
season. If these ladies had presented a petition, praying for 
further protection of their wardrobes from theft, a bill for 
that purpose would have been passed by this gallant Legis- 
lature. But as they sought for protection for domestic love 
and peace, for noble pride and kind affections, for honor and 
happiness, these Solons derided the application. They could 
appreciate silks and laces, and yet deride the holiest senti- 
ments of the being they adorned — " they could pity the 
plumage, and forget the dying bird." 

Let us now examine more minutely some of the rights of 
man, arising from the sentiments and affections of his nature, 
with a view to the ascertainment of what is a proper mea- 
sure of legal defence and vindication. And first — the marital 
rights. The sexes are born nearly equal in point of num- 
bers, and this alone creates a natural necessity for their unit- 
ing in pairs. But it would go no farther ; it would not de- 
termine the permanency of that union, but leave it to be dis- 
solved at the mere option of either of the parties, upon the 
slightest occasion. The law of nature, however, has not 

* See 1 Chit. Med. Jur. 320—367. 



136 HITMAN RIGHTS AND THEIR GUARANTIES. 

only ordained the pairing of the sexes, but the permanency 
and sacred inviolability of the union. It is true that the in- 
stincts which lie at the foundation of it, are shared by man 
in common with all the animal creation ; but in man these 
instincts are strengthened and consecrated by high and noble 
sentiments, which are wanting in animals ; and we have 
seen that the most sacred rights emanate from these senti- 
ments, and among the chief of these are the marital rights. 
Offspring result from the marriage union. Mankind have a 
natural love of offspring — heightened by holy hope, and just 
pride, and benevolent affections. The parents have to deal 
also with sensitive, rational and moral beings in their children, 
whose fate is so connected with their own, as that they are 
bound to preserve inviolate that, union which has called them 
into being, and whose continuance alone can promote their 
happiness. Man is denied his animal freedom in this regard ; 
it is subject to his moral and superior nature, and it is well 
that it is so. Moreover, such is the nature of human affec- 
tion, that a judicious attachment is strengthened by indul- 
gence and time, so that a separation by death, even, is among 
the severest trials of the afflicted. If so great distress come 
from the act of Providence, to which man is disposed, by his 
reverence and awe, to submit with meek and pious endur- 
ance, what must he suffer whose domestic affections are 
wounded by that worse deprivation, the moral death of the 
being whom only he loved ? No sentiment of veneration and 
submission to the Creator's laws now soothes his wounded 
spirit ; but his pride, his honor, and his sense of justice are 
rudely lacerated, and his entire moral nature revolts at the 
wrong. Marriage is an institution of nature. The sacred ex- 
clusiveness of domestic love is demanded by the laws of the 
human mind, and hence the right to its inviolability. The 
human legislator cannot plead that he instituted the married 
state, and may, therefore, notice or disregard its claims, as 
he shall choose. He is bound to regard it as the institution 
of nature, and to vindicate its rights by appropriate laws. 

Consider next the wounds inflicted upon parental feelings. 
Philoprogenitiveness and Adhesiveness cling to the child — 



RIGHTS OF THE SENTIMENTS AND AFFECTIONS. 137 

Benevolence showers blessings around it, and hope and pride 
look forward with exultation to its advancement and success 
in life. The object of so much attachment, and who prom- 
ises so much, attains to womanhood — sweet, confiding, inno- 
cent and beautiful, but falls the victim of such vile art and 
falsehood, as was so foreign from her nature that she was 
not prepared for its encounter. The parent is stung with the 
deepest agony. Every sentiment and affection which before 
derived pleasure from her existence, is now a source of tor- 
ment to him. He was before happy — he is now miserable ; 
his rights, therefore, have been invaded, and he justly de- 
mands protection from the law. 

We have seen that a sense of pride and love of approba- 
tion are innate in man ; these may be wounded by malicious 
detraction and insult, and this will disturb the peace of the 
injured individual. He therefore demands, very properly, 
legal protection for these sentiments. 

I cite these instances for the purpose of leading the way 
to a discussion of the species of redress which the law ought 
to afford for injuries to the sentiments and affections. The 
right of property is fully acknowledged by our laws. A man 
injured in this right has secured to him a civil action for re- 
dress, in which he recovers a compensation in money for the 
wrong done him; and in cases of injury by theft, embezzle- 
ment and in some cases of fraud and imposture, the law has 
made the offence criminal and punished it as a felony. One 
would suppose that a right so sacredly guarded by the law 
must have a higher and holier origin than others, and that its 
protection was of higher importance to man's happiness 
than those rights which were entirely neglected. Whence, 
then, the origin of this right ? It emanates from the instinct 
to acquire. Man has a natural desire to acquire and keep 
property. This instinct is possessed in a slight degree by 
some of the animal tribes, and it does not aspire to the dig- 
nity of a sentiment. It, however, calls the sentiment of self- 
esteem to its aid, and then says, "this is mine ; and because 
it is mine it is better than if it were thine ; and I am better 
than thou art, because I have it and thou hast it not." Now, 

12* 



138 HUMAN EIGHTS AND THEIR GUARANTIES. 

if you deprive this man of this thing you become a felon ; 
but if you only take away his wife or degrade his daughter, 
or destroy his character, you are still a gentleman in the eye 
of the law ! 

The person is also greatly favored in our jurisprudence. 
Not only its utility but its symmetrical beauty has met with 
a most favorable consideration. If you cut off a man's 
ear, or slit his nose, or otherwise maim him, you are regard- 
ed as a felon ; but you may so lacerate his feelings as to de- 
stroy his reason, and escape without legal notice. An ear 
or nose is iiiore valuable, says the law, than the reasoning 
faculties. Nay, so jealous is the law of injury to the corpo- 
real man, that you may not shake your fist at him within 
striking distance, though you touch him not, but forthwith 
you will be arrested and carried before a magistrate fur the 
offence ; and if he himself does not call you a coward, vaga- 
bond and knave, he will be regarded as uncommonly civil and 
reserved upon the occasion ! 

Now, all human rights emanate from the natural senti- 
ments and desires of the mind ; they have, therefore, the 
same source, but it does not necessarily follow that they en- 
joy the same rank and dignity; some are more sacred and 
important than others to human happiness. 

Every member of man's physical frame is of some degree 
of importance in the exercise of its corporeal functions ; but 
he can bear the loss of one with less sacrifice than another, 
because it is not of equal importance to his bodily strength 
or activity. The loss of his finger is not equal to the depri- 
vation of his hand, nor his arm to that of his leg. It be- 
comes us, then, to fix the grade of man's intellectual powers, 
and to determine the relative rank and dignity of the vari- 
ous faculties, dispositions, and sentiments of the human 
mind. The supremacy will be conceded to man's moral na- 
ture ; his intellectual faculties are next in rank, but wholly 
subservient to it, as are also the animal feelings. 

Man's highest enjoyments consist in the gratification of 
his sentiments. His secondary pleasures arise from the in- 
dulgence of his animal feelings, under the restraint of the 



RIGHTS OF THE SENTIMENTS AND AFFECTIONS. 139 

sentiments and the intellect. The source of his highest en- 
joyments, when disturbed or wounded, becomes the source of 
his most poignant suffering. He can bear pecuniary easier 
than domestic deprivation — an injury to his person with less 
sacrifice than an injury to his character. Fraud and decep- 
tion offend him more than theft, and obtaining by false pre- 
tences more than robbery. He can endure hunger and want 
easier than the loss of his good name, and will sacrifice the 
peace of his body for his peace of mind. He will lay down 
life itself for freedom, truth or justice, and enlist all the 
powers of his nature in the service of its benevolence. He 
will spend his fortune to satisfy his love of praise, and devote 
his life to gratify his pride and ambition. Nay, he will deny 
himself the entire gratification of the lower propensities un- 
less their indulgence can proceed under the sanction of his 
moral sentiments. If this be so, ought not the law to recog- 
nize these gradations of nature, and to award its protection 
according to their demands ? 

Injuries to the sentiments and affections ought to be re- 
garded as offences against the most sacred rights of man, and 
the law ought to deal with them according to their various 
degrees of moral turpitude. The first point to be attained is 
a full restitution to the injured party so far as the wrong doer 
can be coerced by a judicial procedure. A pecuniary com- 
pensation does not meet the case, and it seems to me ought 
to be % banished altogether from the mind when considering of 
a redress for injuries to the human sentiments. In the next 
place, I would treat these injuries as moral offences ; and the 
most enormous of them — such as those most deeply affect- 
ing the marital rights and domestic love and peace — I would 
rank with the second class of felonies, both in respect to the 
mode of treatment consequent upon conviction and the civil 
disabilities which should ensue. 

Slander and libel, which wound the sentiments only, and 
do not directly injure a man's pecuniary interests, ought to be 
treated as moral offences, and the civil action for pecuniary 
compensation ought to be abolished altogether. The idea of 
bartering a man's moral sufferings for money — of enduring 



140 HUMAN RIGHTS AND THEIR GUARANTIES. 

so much mental agony for so many dollars, is utterly de 
grading to humanity. Money is not the standard by which 
to estimate moral worth or human happiness. But where 
the offence is against the right of property, the extent of the 
injury can be measured by this standard and a compensation 
be made in money. Such injury may also be a moral of- 
fence, and when so should be treated accordingly. This 
would abolish the civil action of adultery, the action for de- 
bauching a daughter, and the action for slander and libel, ex- 
cept where the words published occasioned a direct and im- 
mediate pecuniary injury. It would also abolish the action 
for assault and battery, except where the bodily injury was 
such as to occasion a pecuniary loss, and it would substitute 
criminal treatment as the sole measure of protection and re- 
dress. The rule, in line, would be to treat all offences 
against the sentiments as moral wrongs, and to lay entirely 
out of view all atonement by money for injuries to human 
rights, except where the right of property is directly affected 
by the wrong. 

This would prevent and redress moral wrongs by moral 
means, and award for pecuniary wrongs their only appropri- 
ate remedy. What ! shall a man's whole moral nature be 
grossly outraged and lacerated by the vilest wrong, and the 
law deal out a bait to a mere instinct by way of atonement 
and satisfaction ? Suppose self-esteem, approbativeness, ad- 
hesiveness, benevolence and conscientiousness to be raging 
under offence and injury, and you soothe them by gratifying 
acquisitiveness ? As well might you, when acquisitiveness 
itself was outraged by an injury to property, attempt to re- 
dress the wrong by gratifying the organs of music, and give so- 
lemn judgment in your courts that the defendants should play 
for the plaintiff some of his favorite tunes. 

It may be objected that there is a vast disparity in the ex- 
tent and seriousness of the various injuries to the sentiments 
and affections, according to the malignity of the offender, the 
sentiment or affection that should be wounded, and the or- 
ganization and external condition of the aggrieved person, 
and that therefore it would be difficult if not impossible to 



RIGHTS OF THE SENTIMENTS AND AFFECTIONS. 141 

frame a code c flaws which should afford the required recog- 
nition and protection of these rights, without endangering 
the rights and liberties of the accused. I answer, that the 
laws already recognize and afford protection to rights where 
the same difficulty exists ; and what has been safely done in 
one case can be done in another of the same nature. 

The right of life itself is protected by our statutes, which 
declare that the destruction of human life may be either 
murder, punishable by death — or manslaughter, punishable 
by imprisonment in a state prison, for a long term of years — 
or manslaughter punishable by a shorter term of imprison- 
ment ; or the same offence, punishable by imprisonment in a 
county jail, or by a fine only. And cases are declared in 
which the taking of human life is either justifiable or ex- 
cusable homicide, which of course are not punishable at all. 
Now, the punishment for the taking of human life is not re- 
gulated by the mere fact of the destruction of life, for if it 
were there would be but one offence and one punishment ; 
but the circumstances attending each case are considered, 
and the crime takes its character aud meets its punishment 
from the degree of moral turpitude manifested in its perpe- 
tration. We have seen that every man has an innate love of 
life ; and in one this intuitive attachment to life is much 
stronger than in another, and yet the law does not attempt to 
measure the offence of man-killing by the amount of the in- 
stinctive attachment which was violated by the act of kill- 
ing. The law recognizes the instinct and the right, and pro- 
tects it whether it be strong or weak. The killing of a hu- 
man being who should be so disgusted with life as that he 
would have committed suicide if he had not been murdered, 
is as much a crime in the eye of the law as if the deceased 
had the most ardent attachment to life. So, also, the life of 
the humble is as sacredly protected as that of the great. 

The same holds true of the right of property. The law 
regards the right alike, and its violation as the same offence, 
whether the owner was a miser or a philanthropist, whether 
he had much or little. The offender who steals from a man 
with large acquisitiveness, commits no greater offence than 



i 



142 HUMAN RIGHTS AND THEIR GUARANTIES. 

when he steals from one with a small instinctive love of pro- 
perty. The offence is against the right, and the means of 
prevention are graduated according to the degree of moral 
turpitude manifested by the offender. Accordingly, he who 
steals a loaf of bread is not treated in the same manner as 
he who takes hundreds of dollars. So, also, the law has 
already distinguished between various degrees of forgery, 
and created several distinct grades of this crime, and award- 
ed various degrees of punishment. The same may be said 
of the crime of arson. I am not required to show that these 
gradations, or any of them, are correct, nor do I say that the 
mode of criminal treatment is proper ; but I cite these in- 
stances to show, not only that by our law at present there 
are recognized several distinct crimes, from those meeting 
with capital punishment to the lesser sort punishable by 
slight imprisonment— but, moreover, that offences against the 
same right are graduated and meet with different degrees of 
punishment. 

Suppose, then, the law should declare seduction to be a 
high moral offence, of which it would take cognizance; 
that if the victim was under a certain age, or it was effect- 
ed by a pledge of marriage, it should meet with the highest 
measure of condemnation to be awarded to this offence. Let 
lesser grades of this offence be specified, and let the jury find 
the offence to be of a certain degree, as denned by law, and 
have the mode of criminal treatment for that degree fixed 
and certain. No greater difficulty would be encountered 
here than legislation is supposed to have overcome already 
in cases of homicide, arson, forgery and theft. 

So in cases of slander. Written slander, or libel, is now 
regarded, by law, as exhibiting greater moral turpitude, and 
as more to be dreaded than verbal slander. The former is 
indictable as a misdemeanor now, while the latter is not, 
but is the subject only of a civil action for damages. Would 
there be any difficulty in pronouncing them both to be crimi- 
nal offences, and graduating their condemnation according to 
the degree of moral turpitude evinced in their perpetration? 

This much the law could do at anv rate ; it could define 



RIGHTS OF THE SENTIMENTS AND AFFECTIONS. 143 

what should be the first degree of any moral offence, and 
could fix its certain treatment ; and it could declare that all 
other like offences should fall within either a second or third 
degree, in the discretion of a jury who should weigh the cir- 
cumstances of each case. This would take all arbitrary dis- 
cretion from the courts, and leave the accused in the hands 
of a jury of the country, coming from the body of the people, 
and properly representing the just sentiment of an enlight- 
ened and virtuous community. 

I perceive no insurmountable difficulty in the practical ap- 
plication of the principles of legislation, for which I have 
striven in this chapter. They at least invite candid investi- 
gation. Humanity pleads for their adoption ; the noblest 
sentiments of our nature impel us to demand their considera- 
tion in the halls of legislation ; and I have yet to be convin- 
ced that He who ordained the pressing demands of the hu- 
man sentiments and affections, and conferred upon man intel- 
lectual powers to subserve thern, has been so sparing of the 
latter endowment, as that, how hard soever he shall strive, 
his reasoning powers will fail of securing an adequate mea- 
sure of legal protection against the vilest wrongs which one 
human being can inflict upon another.* 

* While treating of the constitution of government and the class of persons 
who might participate in State affairs, I argued in favor of the exclusion of all 
persons from the exercise of the elective franchise who manifested grossly im- 
moral dispositions, or who were so organized as to be at war with the rights of 
mankind. Such persons do not belong to the governing class, since they are so 
debased as to create the necessity for government. In a republic the people must 
rank either as the governors or the governed — as those who ordain and uphold 
the laws, or as those who disobey them. The latter may be deprived of the privi- 
leges of electors, and have not the capacity to hold office. These disabilities fol- 
low upon conviction for an infamous offence ; and we may regard the most 
heinous of the moral offences referred to in the preceding chapter as justly in- 
volving the same disabilities. 

Some of these offences may require the imprisonment of the offender — others 
may not ; but all may exhibit such disordered moral dispositions in the offender, 
as that the disabilities referred to may justly attach to him, either upon his first 
or second conviction. 

After the law shall have provided for the vindication of rights emanating from 
the sentiments and affections ; after it shall have placed the offender in confine- 
ment, or graduated his social position and influence according to his demerit by 
means of civil disabilities following upon his offence — the social body may then, 
with great justice, ordain similar treatment for the duelist for his violation of the 
public peace. For it is only in the absence of a law for the protection of his right 
and the proper treatment of an offender, that a man can resort to self-redress. 

An article lately appeared in the New World periodical, from the pen of its very 
capable editor, Mr. Charles Eames, on the subject of dueling, in which, after an 
elaborate statement of the motives which led to the duel, the means of repressing 



144 HUMAN RIGHTS AND THEIR GUARANTIES. 



CHAPTER VIII. 

THE RIGHTS OF WOMAN. 

The present chapter is devoted to a general survey of the 
rights of woman — the rights of one half of the human race 
— and which I do not propose to treat as the " better half," 
but rather as the equal half of mankind. I shall not mock 
woman with fulsome adulation, lest I should offend her pride 
— nor yet withhold from her appropriate praise, lest I should 
offend her sense of justice. Man surely makes no very hu- 
miliating concession when he admits her to be his equal — 
and her proper ambition may well be satisfied without aspir- 
ing to be his superior. Woman is deprived of her natural 
dignity when the laws depress her below the condition of 
man— and she may be treated as an usurper when she aspires 
to exercise dominion over him. 

Man was not " born to command," nor woman " to obey." 
They are not wedded to each other by human laws, nor by 
the church, but by the law of their natures, whose ministers 
are the common sentiments and affections of their minds— 
and which consecrate their union, demand its sacred inviola- 
bility, and admonish them perpetually to love, honor and 
cherish each other so long as they both shall live. By these 
neither is commanded to obey the other, but only the Crea- 
tor's raws. 

But woman is to be regarded not only as the companion and 
equal of man, but as the same intellectual being as himself, 
possessed of the same sentiments and affections — the same 

this offensive practice were discussed with great ability. Instead of resorting to 
the punishment of the gallows and the prison, Mr. Earner proposed that the 
duelist should incur legal disabilities to the fullest extent which can be inflicted 
by legislation : that he should be unknown to the law as a man and a citizen — so 
that he could not vote, nor hold an office, nor exercise any learned profession, nor 
be a witness — nor, indeed, have any legal capacity more than an idiot or lunatic. 
Few, indeed, would vindicate their honor at so greet expense as this. 



THE RIGHTS OF WOMAN. 145 

emotions and wants, and consequently of the same natural 
rights. 

One need but to hint to " ears polite " that woman is pow- 
erful in intellect, noble in sentiment, and that she aspires to 
the perfection of her being, by all the means allotted hy the 
Creator for the attainment of true excellence and happiness 
—and all this and much more will be conceded before it is 
half expressed. I shall take this concession from the culti- 
vated and polite, and treat it as though it were made in good 
faith. It ought not to be regarded as " small talk," nor con- 
strued tenderly, as though made '"to please the ladies;" 
since, if we set about it earnestly, we can prove that this con- 
cession, although made in the spirit of gallantry, might well 
have been dictated by a sense of justice. 

Inquire of the physiologist whether woman hath the same 
cerebral organization as man; and he will answer that her 
brain and nervous system are the same in structure, and exe- 
cute the same functions. 

Inquire of the phrenologist, and you will be informed that 
as in man, so in woman, by means of the brain, all mental 
powers are manifested ; that these powers have their respec- 
tive seats in distinct parts of the brain : and that not one of 
them which is found, in man is wanting in woman : that these 
powers, whether of sentiment, intellect or passion, vary in- 
definitely in the different individuals of the human race, 
whether male or female — but that they are common to man 
and woman, who have therefore one common nature. 

Consult the writers upon natural law as to the derivation 
of human rights, and the most approved of these will state 
that they emanate from the natural wants and emotions of 
mankind, as I have attempted to show in the preceding 
chapters. 

What, then, let me inquire, necessarily follows from these 
premises ? Nothing less than this, That the rights of man 
and the rights of woman are precisely one and the same : 
the " lord of creation " is just as well off as the lady of cre- 
ation, and not one whit better. 

You have now the concession of gallantry, the testimony 
13 



146 HUMAN RIGHTS AND THEIR GUARANTIES. 

of the physiologist, the demonstration of the phrenologist, 
and the authority of writers upon the natural law, all estab- 
lishing the rights of woman upon the same foundation as the 
rights of man. You present these to the British or Ameri- 
can magistrate, and demand that the same legal protection 
shall be afforded to one as the other — nay, that the laws shall 
not be made for man or woman — but for mankind; that all 
rights are human rights, and pertain to human beings, with- 
out distinction of sex ; and he will be filled with surprise, if 
not with horror. What then is the difficulty ? Nothing less 
than this, That the laws of England and America, touching 
the Rights of Woman, are at variance with the laws of the 
Creator ; and the question is, Which shall stand ? 

It would be going too far to say that the laws of these 
countries do not recognize the rights of woman at all ; for 
they do acknowledge and protect the rights of a single wo- 
man or "spinster," as these laws politely term her. But 
marriage forms an astonishing legal era with this same 
" spinster ;" she becomes most emphatically a new creature 
after this event — a being of the law's own creation — a mons- 
ter, (pardon the word,) whom nature disowns — a fictitious 
being, breathing a legal, not a moral atmosphere. She is 
courted and wedded as "an angel," and yet is denied the dig- 
nity of a rational, moral being ever after. I am aware that 
this is bold language ; but I propose to demonstrate its truth 
and justice. 

We have before seen that marriage is a natural institution, 
proceeding necessarily from the organization and condition of 
the sexes; and that the law of their natures demands an 
union for life. This union is necessary to their happiness, and 
as it is dictated by the desires and sentiments of their com- 
mon nature, to live in the married state is a sacred right. — 
In a former chapter, I showed that man was ordained by his 
mental constitution to live in human society — and this being 
so, he must enter the social state without surrendering any 
r r his rights, since the designs of nature all harmonize with 

ch other. The foundation was thus laid for asserting that 
woman by entering the married state, doth not properly sur- 
render any right whatever. 



THE RIGHTS OF WOMAN. 147 

My argument is this, That woman's mental forces and 
wants are designed to have a free and harmonious exercise 
and gratification — and while single her rights to this extent 
are conceded to her — that marriage results from her mental 
constitution, and is necessary to her happiness, so that she 
has a right to live in the married state ; having such right she 
can demand its enjoyment, without the surrender of any other 
right incident to her nature — since no one proper natural want 
is to be answered at the expense of another's denial ; and as 
woman no more requires the married state for her happiness 
than she demands that full scope and exercise be given to the 
various powers of her nature, it cannot be claimed that she 
must surrender any of her natural rights upon entering into 
the married state. 

She follows not less than man the great law of her nature 
when she " pursues her own true and substantial happiness." 
By the laws of her organization she has the same faculties 
and wants as man, and they demand the same exercise and 
gratification. Her rights have therefore the same origin and 
extent as his own. Now I suppose I have established, in my 
introductory chapter,. that man surrenders not a solitary natur- 
al right, when, by yielding to the harmonious demand of all 
his intellectual forces, he enters the social state, and acqui- 
esces in the proper institutions of government. Why then 
should woman, by yielding to a like general demand of her 
nature, and entering the married state, be required to surren- 
der any of her natural rights ? Let it be borne in mind that 
the state of marriage is not more demanded by woman's na- 
ture than by man's. It is as necessary to his happiness as to 
her own. He is in an unnatural condition out of wedlock. — ■ 
In both it is the voice of nature that pronounces them to be 
" husband and wife." He surrenders not a single right when 
summoned by this voice to the altar of Hymen — but walks 
erect in all the dignity of his nature, the stern and immuta- 
ble man ; taketh the vow, and goeth forth undivested of any 
of the rights of humanity. While she, who went forth in 
pride, returns in humility. She who was wooed by the bend- 
ed knee of suppliant man, hath promised to obey that man, 



148 HUMAN RIGHTS AND THEIR GUARANTIES. 

now proudly claiming to be her lord. She who went forth 
an intelligent moral being, obedient only to the will of Heaven, 
returns the creature of man's will — having transferred her 
allegiance to him. 

She was before his equal— she is now his inferior. She 
existed before as a distinct moral being, full of rights and 
bounden by duties ; that existence is now merged hi her hus- 
band — and in the eye of the law she exists not at all. But 
from her legal tomb he gains an accession of power, dignity 
and rights. Her submission exalts the throne of his power : 
her legal insignificance elevates his dignity, and her lost 
rights are appropriated to himself. The law allows him to 
exact her obedience, and to compel it by appropriate chastise- 
ment and restraint. It confers upon him her estate — every 
body knows that the dead cannot keep their property — and 
the wife is legally dead. She therefore exchanges her free- 
dom of will, her moral dignity and her worldly estate, for 
that most uncertain estate, a man — upon whom she can lav- 
ish her affections, and, by looking upward to him with suf- 
ficient awe and reverence, can call into complete exercise her 
veneration and her wonder ! Well is it for the aggressor that 
the aggrieved was made for love rather than for war, or he 
would be put upon immediate self-defence. No man asks of 
his fellow, no nation demands of another, any like concession 
of rights, when the closest friendship springs up between 
them. The honor belongs to English and American lawgiv- 
ers, of having discovered the class of human beings which 
will endure the greatest deprivation of rights, with the least 
effectual resistance. Doubtless it is a valorous thing to con- 
quer woman, and " to the victor belong the spoils of the van- 
quished !" 

Go forth, valiant Saxon ! not frowning like Mars — but with 
a countenance clothed with smiles ; not breathing destruction, 
but the soft whispers of gentle love ; subdue the heart of fair, 
confiding woman, and the law shall load you with spoils ! — 
Gain her affections, and you shall not be annoyed with her 
moral dignity ; obtain her hand, and you shall have her purse 
also. Let not the characteristic modesty of your nature de- 



THE EIGHTS OF WOMAN. 149 

press the energies of your mind, for the law favors you. Let 
not your sense of justice defeat the gratification of your ac- 
quisitiveness, for is not the law just ? Princes acquire do- 
main, power and wealth, by conquest — why shouldst not 
thou, one of Creation's lords, have thy plunder for thy pains ? 
Let us now examine the institution of marriage as recog- 
nized by the Common Law, and the legal rights and rela- 
tions of husband and wife. 

" Our law," says Sir William Blackstone, " considers marriage in no 
other light than as a civil contract. The holiness of the matrimonial 
state is left entirely to the ecclesiastical law, the temporal courts not hav- 
ing jurisdiction to consider unlawful marriage as a sin, but merely as a 
civil inconvenience. 1 ' 

Here is the first grand error of the British and American 
law concerning marriage. It is the idea of marriage being 
" a mere civil contract" that leads on to much absurdity and 
injustice. This species of contract in general relates to mat- 
ters of property. It is an agreement by which one person, 
at the solicitation of another, undertakes to do or to abstain 
from doing some act which, done or abstained from, will be- 
nefit the promissee in his estate and property ; the violation 
of which by the promissor, is regarded as a civil wrong, to 
be atoned for by the payment of money as damages. Hence 
the action for a breach of promise of marriage. A man and 
woman "contract" to marry ; this the law regards as "a fair 
business transaction." The man refuses to perform his part 
of the contract ; this refusal is a breach of the contract — a 
civil injury— and the aggrieved party can sue him in a court 
of law and recover a compensation in money as damages for 
the breach of contract But the woman refuses to perform 
her agreement — then the man may sue her and recover a 
compensation in money. 

In an old case it was contended that the man could not 
have an action for the breach of the marriage contract, for 
the reason that marriage was of no advantage to him, and 
therefore he could have no damages. But the Court over- 
ruled this argument, and gave the injured man his remedy 
also, 

13* 



150 HUMAN RIGHTS AND THEIR GUARANTIES. 

But I see not on what principle this decision can be sus- 
tained, if marriage is to be regarded as a mere civil contract, 
and you look to its breach as a ground for awarding pecuni- 
ary damages to the aggrieved — unless it appears that the fair 
defaulter possessed a fortune. For, I would inquire, how 
much money can a man make of the marriage contract in 
cases where the wife brings no fortune. If he sustains no 
pecuniary loss he ought not to have any pecuniary satisfaction. 
But if the delinquent woman possess a fortune, inasmuch as 
the law gives it to the husband upon the marriage, we can 
perceive, if she will not marry him, that he sustains damage to 
the amount of her fortune — less her reasonable support out 
of it — and our most righteous laws ought to award it to him ! 
The default of an heiress, then, would be a snug little profit 
to the broken hearted lover ! 

" A civil contract !" A contract to do what? Has it ever 
been written out ? Is it to love one human being above all 
others for ever ? Is it to consecrate that love by the purest 
devotion — the holiest sentiment — the most perfect seclusion ? 
Is it to devote the faculties and affections of the mind to the 
attainment of another's happiness ? Doth the wife so re- 
solve ? And is the husband to protect her life — preserve her 
honor — and to exalt her intellectual and moral dignity by the 
concentration of all his faculties, sentiments and affections, 
in the work of devoted love? Shall he be willing to lay 
down his life for her happiness, and to part with all other 
beings, all other possessions, sooner than the wife of his bo- 
som. If so, is this to be written on parchment like a common 
deed — to be set forth in legal pleadings — read aloud to vul- 
gar crowds in open courts— and to be made the subject of 
pecuniary estimation? "A civil contract!" Say rather, 
that marriage is the holiest ordinance of the Creator's laws 
— that its obligations are felt in the highest impulses of the 
human sentiments, and are incapable of utterance by the hu- 
man tongue. 

It is this idea of marriage being a civil contract which 
enables the husband to prosecute for the highest infringe- 
ment of the marital right, and to recover money as damages 



THE RIGHTS OF WOMAN. 151 

against the offender — a mode of redress which I hope I suf- 
ficiently condemned in a former chapter. And yet the law 
which regards this as a mutual contract between husband 
and wife, does not give the wife any damages for the viola- 
tion of it by the husband, either as against him or the per- 
son with whom he commits the wrong. Another glory for 
that " perfection of human reason," the common law ! If 
we discard the notion of marriage being a civil contract, the 
action for a breach of the marriage promise would not be re~ 
tained ; but such breach would be regarded as a moral of- 
fence, as it truly is in many cases — and in such instances it 
would meet with criminal treatment — and to the mjured 
party there would be awarded some more appropriate re- 
dress than the payment of money. The procedure might 
be such that no one would pride himself upon a violation of 
piighted vows, and indulgence in falsehood and bad faith would 
no longer be called " trifling" with human affections. But 
while the laws place the violation of the lover's faith upon 
precisely the same footing as the non-payment of a promis- 
sory note, it may be expected that ordinary minds will re- 
gard the payment of damages in the former case a full atone- 
ment as in the latter. Thus the man or woman whose mar- 
riage vows are broken, will be as respectable in society as 
the merchant whose notes are under protest — and bankruptcy 
of the affections will be regarded as no more distressing than 
bankruptcy in trade. 

Do not suppose that I contend for innovation from the love 
of novelty — or that I would remove the landmarks of the 
law for the sake of appearing to be a reformer. — I am only 
applying a general principle, which I endeavored to estab- 
lish in >x former chapter — that injuries to the high and holy 
sentiments of humanity ought to be regarded as crimes, 
and not as the subject of pecuniary atonement and sat- 
isfaction — and that, when the law shall not regard them 
as crimes, it shall not recognize them in any manner what 
ever. 

Let us get rid of the sordid estimate, the pecuniary valu- 
ation of human hopes and joys, sorrows and afflictions. Let 



152 HUMAN RIGHTS AND THEIR GUARANTIES. 

no man or woman say, " This is the price of my humanity, 
this is the value of my honor and happiness ; give me so 
much and I am content. Go, perjured creature, and wed an- 
other, but pay me first before you go ; this mockery of the 
heart is worth so many dollars ; pay them, and my wounds 
will be healed !" Precious humanity this ! Is it far above 
our estimate of the animal tribes ? The ox, the horse, the 
ass, are valued thus ; and surely none but beasts can have a 
monied price. A man receives your money and contracts to 
deliver to you a horse, but fails to do so. This is a " civil 
contract" — and for its breach you sue him and recover 
the value of the animal. But instead of contracting to de- 
liver a horse he contracts to deliver himself — here is another 
" civil contract" — and he fails to perform it. Our laws 
allow you to sue him again and to recover the value of 
the animal. 

Let us next consider what persons may enter mto the state 
of matrimony. " The parties must be able to contract," 
saith our law ; and it regards all persons as capable of mar- 
rying except those who labor under some defined disability 
or incapacity. Consanguinity, or relation by blood, is a disa- 
bility derived from the natural laws — it having been observed 
as a general result that the offspring of a marriage within 
certain degrees of consanguinity are imbecile either in mind 
or body. This disability ought probably to be extended so as 
to prohibit marriage between first cousins. Idiots and luna- 
tics arc incapable of contracting marriage — except the latter 
during a lucid interval. The lunatic may bind himself by a 
civil contract during such intervals, and, therefore, our laws 
at such times allow him to marry. Here is another error 
arising from the doctrine of civil contract being applied to 
marriage. The lunatic ought to be prohibited from marrying 
at all times. The laws of nature forbid it, and the laws of 
man ought not to favor the transmission of his infirmity to 
his offspring. 

The age of legal consent to marriage is fixed by the com- 
mon law at fourteen years in males and twelve in females. 

" The law," says Chancellor Kent, " supposes that the parties at that 



THE RIGHTS OF WOMAN. 153 

age have sufficient discretion for such a contract, and they can bind them- 
selves irrevocably, and cannot afterward be permitted to plead even their 
egregious indiscretion, however distressing the result of it may be." 

Here our law supposes a " sufficient discretion" to exist in 
a case where every body knows it does not exist at all. Why 
should the law outrage the sense and judgment of mankind 
in this most important transaction of human life ? No man 
or woman is supposed, even by the law, to have sufficient 
discretion before the age of twenty-one years to enter into 
any contract except for the necessaries of life and for profit- 
able instruction. No man can irrevocably convey his land 
or sell a horse before he attains to the age of twenty-one 
years — why, then, should he be deemed to possess sufficient 
discretion to choose a wife, and to assume the responsibili- 
ties of a husband ? The age of legal consent to a marriage 
as now recognized by law is wholly immature, and ought to 
be changed to that period of life when the intellectual facul- 
ties attain their full development, the character is formed, 
and the parties take their true position in society. The 
man ought to postpone marriage until he shall have en- 
tered seriously upon the business of life and fairly tested 
his chance of success. The Napoleon code is far more 
reasonable and in conformity with the laws of the human 
mind — which provides that in case of marriage without the 
parent's consent, the son must be twenty-five and the 
daughter twenty-one years of age, in order to render them 
competent. But even this code, the parents consenting, al- 
lows marriage at too early an age. It seems to me that 
marriage earlier than at the age of twenty-five in males and 
twenty-one in females, ought to be forbidden by law for na- 
tural reasons. * 

The newspapers of the day contain the following statement : 

" A case is now pending before the Senate of New-York which is peculiar in its 
features. The Common Law fixes the " age of consent," as it is termed, at twelve 
years for a female. Some years since the statute law of this State varied that 
age of consent to fourteen years, and at the same time declared it a felonious of- 
fence to marry a female under that age without the consent of her parents or 
guardians. Subsequently the statute was amended, so as to restore the Common 
Law rule of twelve years of age as the period when a female becomes legally 
marriageable ; but the penalty against clandestinely marrying a female less than 
fourteen years of age was inadvertently left in force. 



154 HUMAN RIGHTS AND THEIR GUARANTIES. 

Our laws appear to be defective in not restraining from 
marriage the moral idiot — as well as those who are afflict- 
ed with such bodily infirmities as observation has shown 
will be almost certain to be transmitted. The former seems 
to me to be as incapable of entering into the married state 
as if he were deficient in the ordinary powers of intellectual 
perception ; nay, as this state is mainly dependent upon the 
moral forces of the mind, he who is grossly depraved mor- 
ally is not at all in a condition to embark in it, and is 
surely unfit to discharge its obligations. The social body 
is deeply concerned in all that relates to the fitness of mar- 
riage, and the moral training and intellectual culture of 
children. 

We have treated marriage as an ordinance of nature, bind- 
ing upon the parties for life. Its permanency can be greatly 
sustained by judicious precautions at the outset. Prohibit 
marriage by the young and indiscreet — by those who are 
morally insane, and also by those whose constitutional dis- 
eases will cut off themselves and their offspring, and a great 
protection will be gained against the dissolution of the nup- 
tial ties by moral causes and premature death. 

If we could penetrate the designs of Nature in reference to 
the matrimonial state, we should, perhaps, discover that 
one marriage was all that was ordained for either man or 
woman. There are strong indications of such a natural de- 
sign. The uniform equality of the sexes as regards num- 

" During the Autumn of 1838, a daughter of a citizen of Stephentown, Rensse- 
laer county, aged about thirteen years, attended the common school of the dis- 
trict in which she resided, and when going and returning was in the habit of call- 
ing at a neighbor's house on the way. The mistress of this house seems to have 
been an inveterate match-maker, and she so filled the simple girl's mind with no- 
tions of matrimony, having reference to a particular young man of her acquaint- 
ance, as to prepare her to take that important step at the first opportunity. In the 
course of events the father and mother of the girl were absent from their resi- 
dence, at a funeral, which would detain them for nearly a day, and this occasion 
was improved by the husband of the officious match-maker, and others, to per- 
suade their victim (though not without much hesitation on her part) to ride to a 
clergyman's in the vicinity and be married to the young man — who would seem, 
from the statements before the Senate, to have played but a secondaiy part in the 
affair. 

Resulting from these procednings was the indictment of the conspirators and 
the sentence of the husband to the State prison. Meanwhile, the wife is such in 
the eye of the law; although the punishment of the husband pronounces her 
still under the control of her parents. To put an end to this double and incom- 
patible relation, legislative action seems to be necessary." 



THE EIGHTS OF WOMAN. 155 

bers, first suggests this idea. And next, it would appear 
to be the design of nature that human beings should not 
die from disease or want, but that they should wear out by 
the lapse of years. Mr. Combe in his " Constitution of 
Man," appears to demonstrate that disease and premature 
death are the result of our ignorance of, and inattention to, 
the laws of our organization. If this be so, (and no other 
view appears to be reconcilable with the benevolence of 
the Creator,) an union between two persons of opposite 
sexes, would naturally be terminated by death in old age, 
when a second marriage would seem to be prohibited by 
Nature. The moral organization of mankind tends, more- 
over, to the same conclusion. The shock which conjugal 
bereavement gives, even to the least sensitive of our race — 
the sadness with which it shrouds the survivor — the fact 
that the husband or wife selected in early life, is ever re- 
garded as a more perfect being, and is clothed with charms, 
graces and virtues unobserved in one adopted by a second 
marriage — the revolt of the children of the first marriage 
against their surviving parent's again embarking in matri- 
mony — the earnest last request of the dying wife that her 
husband will not marry another — the solemn last will and 
testament of the dying husband, so framed as to prevent, if 
possible, a second marriage by his wife — the common senti- 
ment of mankind, that second marriages are the creatures of 
interest, and are not hallowed by those pure sentiments which 
consecrated the first — all conspire to show that the higher 
nature of mankind revolts at a second matrimonial union, 
and tend strongly to confirm the idea that it is the design of 
nature that there shall be but one marriage connexion for 
either man or woman. 

What instruction, then, ought the lawgivers of mankind 
to derive from these natural precepts ? Their first care 
should be to ordain such laws on this subject as would pre- 
vent as far as possible all indiscreet unions between the 
sexes ; they ought next to guard the marriage ties by severe 
and salutary legislation, and they should regard the dissolu- 
tion of those ties in any other manner than by death as con- 



156 HUMAN RIGHTS AND THEIR GUARANTIES. 

trary to the laws of nature — except in cases where the mar- 
riage connexion ought never to have been formed, by reason 
of the moral unfitness of one or both of the parties. 

The law's first care should be to prevent improper mar- 
riages, and its next, to guard the married state from all mo- 
lestation, and lastly, to regulate divorce by the standard of 
natural morality. There is a right of divorce as well as a 
right of marriage. Ignorance, indiscretion or misfortune 
cannot be visited by the law as a crime — they cannot proper- 
ly work a legal forfeiture of human rights or happiness. — 
Where, then, shall we allow, and what limits shall we set 
to the right of divorce ? I answer, divorce must be allowed 
in those cases and in no other, where it is fairly proved from 
the experience of the parties that the marriage connexion 
ought not to have been formed — that is to say, whenever the 
party complained against shall be shown to be unfit to live 
m the married state. The test should be the moral fitness for 
marriage of the party complained against. 

" Christ himself tells," says Milton,* "who should not be 
put asunder, namely, those whom God hath joined ;" a plain 
solution of this great controversy, if men would but use their 
eyes ; for when is it that God may be said to join ? When 
the parties and their friends consent ? No, surely — for that 
may concur to lewdest ends. Or is it when church rites are 
finished ? Neither — for the efficacy of those depends upon 
the presupposed fitness of either party. It is left, that only then 
when the minds are fitly disposed and are enabled to main- 
tain a cheerful conversation, to the solace and love of each 
other, according as God intended and promised in the very 
first foundation of matrimony. " I will make her a helpmeet 
for him ;" for surely what God intended and promised, that 
only can be thought to be his joining, and not the contrary. 
So likewise the apostle witnesseth, that in marriage, •' God 
hath called us to peace." It may be for domestic reasons 
Milton leaned to the side of divorce — nevertheless, he rea- 
sons well on this subject ; for all the sacredness of the mar- 

* Milton's Prose, vol. 2, page 135. 



THE EIGHTS OF WOMAN. 157 

riage state depends upon the fitness of the parties, and the 
harmony of their minds. 

Upon the principle in view, divorce would in all cases be 
total, and a second marriage would be prohibited to the party 
who was shown to be morally unfit for that condition. An 
absolute divorce is now allowed in only one case, and that 
case, it seems to me, is evidence of no greater moral turpi- 
tude than many others which are unnoticed by law. It 
seems to me that in all the cases in which it is provided by 
the statutes of this state, that a partial divorce or separation 
may be decreed, such as cases of brutal and inhuman treat- 
ment, threatening danger to life, or great bodily injury, and 
desertion and abandonment, ought to be made the grounds of 
absolute divorce ; and that habitual drunkenness, gaming, 
gross prodigality, habitual insult, tyranny or neglect, as well 
as insanity, idiocy, and the conviction of an infamous offence, 
ought to be included in the causes for absolute divorce. The 
miseries produced by domestic wrongs, of which our laws 
take no notice, cry aloud for recognition and redress. How 
often do you witness the spectacle of a gentle, kind and sen- 
sitive woman, abounding in every virtue of her sex, who is 
wedded to a brutal man, degraded by many vices, or sunk in 
habits of drunkenness, or perhaps convicted of an infamous 
crime — and when you contemplate her condition, or hear the 
story of her wrongs and sufferings, your hearts sink within 
you, and all the kind and generous impulses of your nature 
demand that she be relieved from her wretched thraldom. But 
to all the generous pleadings of humanity the law coldly re- 
sponds, that she must abide her cruel fate ! Why should our 
sentiments and the law be at variance with each other ? Ought 
not the law to respond to the high demand of our moral na- 
ture ? Whence its authority, unless it be derived from the 
sanction of our superior sentiments ? The law ought to be 
no more nor less than enlightened justice and benevolence 
written out in the pages of human legislation. It has prop- 
erty nothing to do with questions of expediency — its concern 
is with the right. Is it right that any human being should 
be bound by an inexorable law to another human being 

14 



158 HUMAN RTGHTS AND THEIR GUARANTIES. 

whose presence and whose character inspire nothing but 
dread and loathsome disgust ? Is it right to arm one human 
being with the power of inflicting perpetual misery upon 
another? If not, then let justice be done, though it would 
divorce a world of wretched sufferers. 

Be not filled with dread of an innovation proceeding from 
your enlightened justice and humanity. He who regards the 
marriage vows the most sacredly, and who has the most ra- 
tional view of the true aim of the matrimonial relation, will 
be the first to demand the release of the aggrieved party 
from the miseries of a wretched marriage. You would not 
bind a noble being to a brute, degrade moral excellence by 
perpetual association with the vilest ruffianism — make fast 
the bond that unites the innocent with the guilty, and con- 
demn a spotless being to perpetual union with a felon ! Hu- 
manity revolts at such awful sacrifice of a noble, an immor- 
tal being. How long will it bear such bold defiance by our 
laws ? If man will legislate no more wisely, let woman be 
heard upon this point ; she hath suffered enough from the 
barbarous tyranny of the common law, which weds her to a 
brute, as it were, in her cradle, and binds her irrevocably to 
the moral monster, until the grave opens to receive her ! 

I quote further from Milton: 

" He, therefore, who lacketh of his due in the most native and humane 
end of marriage, thinks it better to part than to live sadly and injuriously 
to that cheerful covenant, for not to be loved, and yet retained, is the 
greatest injury to a gentle spirit ; he, I say, who therefore seeks to part, 
is one who highly honors the married life and would not stain it; and the 
reasons which now move him to divorce, are equal to the best of those 
that could first warrant him to marry." — [Milton's Prose Works, vol. 2, 
page 101. 

" And it is a less breach of wedlock to part with wise and quiet consent 
betimes, than still to foil and profane that mystery of joy and union with a 
polluting sadness and perpetual distemper ; for it is not the outward con- 
tinuing of marriage that keeps whole the covenant, but whatsoever does 
most according to peace and love, whether in marriage or in divorce, he 
it is that breaks marriage least ; it being so often written that ' love only 
is the fulfilling of every commandment.' " — [lb. p. 105. 

"Again — it 3 law aim at the firm establishment and preservation of mat- 
rimonial faith, we know that cannot thrive under violent means, but is^he 
more violated. It is not when two, unfortunately met, are by the canon 
forced to draw in that yoke an unmerciful day's work of sorrow, till death 
unharness them, that then the law keeps marriage most unviolated and 
unbroken ; but when the law takes order that marriage be accountant 



THE RIGHTS OF WOMAN. 159 

and responsible to perform that society, whether it be religions, civil or 
corporal, which may be conscionably required and claimed therein, or 
else to be dissolved if it cannot be undergone ; this is to make marriage 
indissoluble, by making it a just and equal dealer, a performer of those 
new helps which instituted the covenant, being otherwise a most unjust 
contract, and no more to be maintained under tuition of law that the vilest 
fraud, or cheaf, or theft that may be committed." — [lb. p. 146. 

It will be perceived that I regard marriage more as a sol- 
emn sacrament than as a civil contract ; and that when the 
union is consecrated by the sentiments of the parties, it 
ought to be dissolved only by death ; but that, in those cases 
where there is an unfitness in either of the parties, this tie 
ought to be dissolved upon the application of the aggrieved 
party, since it is mere mockery of the sacredness of marriage 
to allow its solemn obligations to be violated with impunity. 
Moral unfitness ought to be deemed a disability ; and as it 
may not be known at the time of the marriage, but may 
come out by its experience, the marriage ought to be de- 
clared void, in the same manner as a marriage by a person 
having a former husband or wife living at the time is now 
declared void by law upon proper application. In the latter 
case the party is deemed incompetent to marry ; in the for- 
mer case the party is equally incompetent, since he wants 
the moral properties requisite to a performance of the high 
moral duties of the conjugal state. Upon this principle the 
law would not acknowledge that there had been a marriage, 
(except in behalf of the offspring,) since it was not consecra- 
ted by the moral sentiments of the parties themselves, and 
the decree dissolving it would be based upon the moral evi- 
dence that this marriage was a profanation of the most sa- 
cred natural ordinance. 

Wherever, then, marriage can properly exist by the moral 
laws, the law of the land would hold to its sacred inviolabil- 
ity and permanent endurance ; and where it could not, in 
contemplation of the former laws, hi ve its proper existence, 
the law of the land would declare it to be void. 

In short, marriage would be regarded as an ordinance of na- 
ture, consecrated by the high and holy sentiments of human- 
ity, and as dependent upon these for its moral and legal ex- 



160 HUMAN EIGHTS AND THEIR GUARANTIES. 

istence — and where these would be outraged by the connex- 
ion, it would be dissolved. 

Let us now consider more particularly the legal condition 
of woman in the character of wife. 

And first — she surrenders her very existence, "to a certain 
extent, as an intelligent moral being. 

" By marriage/' says Sir William Blackstone, " the husband and wife are 
one person in law — that is, the very being or legal existence of the woman 
is suspended during the marriage, or at least is incorporated or consolida- 
ted into that of the husband, under whose wing, protection and cover, she 
performs everything, and is, therefore, called in our law — French, a 
femme covert, is said to be covert baron, or under the protection and in- 
fluence of her husband, baron or lord, and her condition during her mar- 
riage is called her coverture. — [1 JBl. Com., 422. 

Chancellor Kent says that — 

" The legal effects of marriage are generally dcducible from the princi- 
ple of the common law by which the husband and wife are regarded as 
one person, and her legal existence and authority are in a degree lost or 
suspended during the continuance of the matrimonial union." — [2 Kent's 
Com. 129. 

Mr. Justice Piatt, of the State of IN ew- York, in an elabo- 
rate opinion, delivered in the Court for the Correction of Er- 
rors, expresses the highest admiration of these maxims of 
the common law, and denounces the tendency of modern de- 
cisions as " accommodated to the excessive refinements of 
society ;" and he complains that there have arisen artificial 
innovations " in regard to the rights and duties of good old 
English matrimony." He approves the doctrine that the 
very being or legal existence of the wife is suspended during 
marriage, and confesses that he loves and venerates " that 
primeval notion of the mystical and hallowed union of hus- 
band and wife." 

This is a remarkable example of the highest activity of 
the organ of veneration ! But the benevolence of the learned 
judge was not altogether dormant when he continued and 
said : " That we often see acts of tyranny and cruelty exer- 
cised by the husband toward the person of the wife, of which 
the law takes no cognizance," "and yet," he adds, under the 
influence of self-esteem, doubtless, "wo man of wisdom and 
reflection can doubt the propriety of the rule which gives to 



THE RIGHTS OF WOMAN. 161 

the husband the control and custody of the wife" "It is the 
price," says he, " which female wants and weakness must pay 
for their supply and protection" Neither of the two former 
of these writers have attempted to justify this doctrine — they 
merely state its existence and extent — they declare the law 
as it exists, like faithful commentators. Sir William Black- 
stone seems rather to wish to apologise for the existence of 
the law ; and quotes the civil law without disapproving it, by 
which he says, " the husband and wife are considered as two 
distinct persons, and may have separate estates, contracts, 
debts and injuries." It is consoling to know that all woman- 
kind are not under the tyranny of the common law of Eng- 
land, which sets nature at defiance. It is the law of the male 
sex gathering unto themselves dominion and power at the 
sacrifice of the female. It originated among a people who 
are full as much distinguished, in the highest state of civili- 
zation and refinement, for their self-esteem as their love of 
justice ; and it took its origin in the days of their ignorance 
and barbarism ; when the condition of woman was depressed, 
and when it was even doubted whether she had the same 
moral and intellectual existence as man. When the sword 
created the lord, and submission the vassal, the husband took 
the title of baron or lord, and the wife was regarded as his 
creature. Presumptuous pride repelled the idea of equality, 
and rude and savage man never would admit woman to be 
his equal. This act of sense and justice it was reserved for 
civilized man to do after a season of reflection. The time 
has arrived ; justice and benevolence are abroad in our fair 
land, awakening the spirit of inquiry and innovation, and the 
Gothic fabric of the British law will fall before it, save where 
it is based upon the foundation of truth and nature. 

Need I to prove, and if so, have I not proved, that woman 
has the same moral and intellectual constitution as man ; 
that her being and her rights are individual and distinct ; that 
she thinks and acts for herself; is happy or miserable of her- 
self ; is a free, moral agent; an unaccountable being ; full of 
rights and bounden by duties ; having equals, but no superiors 
upon the earth ? Hath she not the sense of pride, of justice 

14* 



162 HUMAN RIGHTS AND THEIR GUARANTIES. 

and of praise, the love of personal and moral freedom ? Is 
it revealed by the natural laws or written by inspiration that 
man shall have dominion over her ? This was given to him 
over the brute only. Is he answerable for her will? Let him 
then do her thinking. Is he responsible for her as a moral 
being ? Let him be punished for her crimes. Does he ab- 
sorb her pleasures ? Let him then endure her pangs, even to 
her toothache ! Neither her moral or intellectual existence 
can be merged in his, more than her physical. If she has 
any existence whatever after marriage, it must be as woman, 
as one of mankind. But I will not insult a reader in the 
nineteenth century by stopping to prove that woman after 
marriage ought still to be regarded as the creature of God, 
and not as the creature of man. 

Those laws, then, which in the least detract from woman's 
intellectual freedom or moral responsibility, or restrain the 
harmonious activity of her faculties after marriage, outrage 
her rights. Her happiness still depends upon the free exer- 
cise of her natural powers. Her restraints must be those of 
her own enlightened nature. The woman and the wife must 
remain one and the same. She must be deemed capable of 
moral and legal consent ; capable of judging and of acting ; 
of willing and refusing. Her rights must be acknowledged 
and her wrongs redressed. She must remain a distinct per- 
son, as by the civil law ; having "her separate estate, con- 
tracts, debts and injuries." In no other way can her mental 
powers have their requisite scope and exercise ; in no other 
way can her intellectual and moral powers enjoy that healthy 
and harmonious activity which nature has ordained as the 
means of perfecting all human beings in knowledge, excel- 
lence and happiness. How widely doth our law depart from 
these plain principles ! " As the husband," says Chancellor 
Kent, " is the guardian of the wife, and bound to protect and 
maintain her, the law has given him a reasonable superiori- 
ty and control over her person, and he may even put gentle 
restraints upon her liberty, if her conduct be such as to re* 
quire it." 

Sir William Blackstone also says, that " the husband (by 



THE EIGHTS OF "WOMAN. 163 

the old law) might give his wife moderate correction — for as 
he is to answer for her misbehavior, the law thought it rea- 
sonable to entrust him with this power of restraining her by 
domestic chastisement ; in the same moderation that a man is 
allowed to correct his apprentices or children." He adds 
" that in the polite reign of Charles the II, this power of cor- 
rection began to be doubted, and yet the lower rank of peo- 
ple, who were always fond of the old common law, still claim 
and exert their ancient privilege ; and the courts of law will 
still permit a husband to restrain a ivife of her liberty in case 
of any gross misbehavior." 

And this learned commentator has the grace to add, after 
this, that " even the disabilities which the wife lies under 
are for the most part intended for her protection and bene- 
fit ;" and then exclaims in a rapture, " so great a favorite is 
the female sex of the law of England " ! The truth is, how 
politely soever the commentator may express it, that the 
hi good old common law " allowed the husband to whip and 
beat his wife, so that he performed this salutary infliction 
with a lawful weapon — and a broomstick was solemnly ad- 
judged to be such lawful weapon — and a rod not larger than 
the thumb was not objected to, unless it were of iron, but if 
so, and death ensued, it was murder. But commentators 
chose to say the law only allows salutary correction and res- 
traint of the wife in cases of gross misbehavior. Allow this 
to be so. He may still lock her up in a closet ; he may bind 
her with cords ; but he may not whip her. He can still in- 
flict personal chastisement of some sort, and can correct her 
as an inferior and dependent, instead of treating her as his 
companion and equal, as a rational and moral being like him- 
self. And so long as the act shall be legalized, there will 
always be a large amount of brute power employed in its 
perpetration. 

All the writers upon the common law agree to this domin- 
ion of the husband over the wife, although they assign dif- 
ferent reasons for its origin and present existence. 

In a note in Peter sdorrT's Abridgement it is said : 

"A series of ages have demonstrated that the savages are the tyrants 



164 HUMAN RIGHTS AND THEIR GUARANTIES. 

of the female sex ; and that the condition of woman is usually ameliorated 
by the refinements of civilized life. In the early stages of society females 
are generally subject to the uncontroled power of the man, and he may 
approve or condemn, caress or chastise, and exercise the dominion of life 
or death. Even now, in countries of the most refined and polished habits, 
a considerable latitude is allowed to marital coercion. In England the 
husband has the right of imposing such corporeal restraints as he may 
deem necessary for securing to himself the fulfilment of the obligations 
imposed on the wife by virtue of the marriage contract. He may, in the 
plenitude of his power, adopt every act of physical cwrcion which docs 
not endanger the life or health of the wife or render cohabitation unsafe." 

I am at a loss to know whether this writer intends to call 
his countrymen " savages" and "tyrants of the female sex;" 
or whether he designs this as a pleasant satire upon the dig- 
nity of English and American wives. At any rate he admits 
that the law confers upon the husband "a plenitude of pow- 
er " indeed ! He sits in judgment upon the hourly actions of 
his wife ; arbitrarily determines whether she has performed 
her duties to her lord ; measures the extent of her submission 
to his will ; and whether he be good or bad, just or unjust, 
calm or raging; whether he loves or hates her, he has the 
power to decide in his own case ; and to seize her person ; to 
restrain her of her liberty; " to use every act of physical co- 
ercion which may not endanger her life or health ; " and if 
she resist and oppose his lordly authority and brute force, he 
may even maim her ; for the right to coerce implies that he 
may use all the force necessary to accomplish his lawful de- 
sign. So much for the personal liberty and security of the 
wife as set forth by the most skilful apologists of the common 
law. Let us now see how the same writers regard the moral 
condition of the wife ; and whether her superior sentiments 
are protected by law or abandoned to the grossest laceration 
and insult at her husband's will. 

The last writer quoted says that, 

" Mere austerity of temper, petulance of manners, rudeness of language, 
or want of civil attention and accommodation — even occasional sallies of 
passion — if they do not threaten bodily harm, do not amount to legal cru- 
elty ; they are high offences in the marriage state, but not that cruelty 
against which the law can relieve." 

I ask why is not actual cruelty " legal cruelty?" Why 
are not " high offences in the marriage state " offences 



THE RIGHTS OF WOMAN. 165 

against the law ? Because this law, true to its origin, still 
looks upon the husband and wife as the same man and 
woman of whom it first took cognizance, and these were 
savages. It knows not civilized man or woman, and ought 
to take leave of them. I would commend it to those conge- 
nial minds which the policy of our Government has concen- 
trated "beyond the Mississippi !"* 

Lawyers do not find it difficult, in general, to assign some 
sort of reason in support of any proposition for which they 
may have occasion to contend. Accordingly, the last writer 
from whom I have quoted, hard pressed in the premises, at- 
tempts to justify the legal supremacy of the husband, upon 
the ground that he is the stronger party of the two — that in 
him there is power to support his dominion ; while if it were 
given to the woman who wants the power, she would at 
every moment be obliged to resort for help to conquer her re- 
fractory subject. This is the tyrant's old argument, that 
" power confers right" — that physical force confers the right 
to do a moral wrong. This does not look well on paper, and 
he accordingly fortifies it by another statement — that the man 
is best fitted by his education, experience and mental powers 
to bear sway. This is but substituting intellectual for phy- 
sical force, and substantially asserts the right of intellectual 
power to do a wrong ; that because a man has the intellect- 
ual forces at command, he may use them to subdue the 
moral and intellectual powers of woman. This would do if 
the power were to be exerted against a brute — but the as- 
sumed mental superiority of the man can have nothing to do 
with physical coercion ; it can only be exerted to persuade 
and convince the reluctant and refractory woman. But man 
shuts out woman from the education and experience which 
he enjoys, and after doing this wrong, makes the deficiency of 
his own creation the foundation of his own supremacy, and 
the denial of her rights — which is but setting up one wrong 
as the justification of another. 

* I fear that I have done injustice by this remark to the Cherokee Indians, who 
have now a well organized government — a written Constitution and salutary laws. 
They allow universal Suffrage of the male sex — and have a law for the protection 
of woman's right of property, so far as to prevent its being sold without her con- 
sent to satisfy the debts of her husband. 



168 HUMAN RIGHTS AND THEIR GUARANTIES. 

. But this argument is most absurd in another point of view 
The question is not which shall have the supremacy, but 
whether any legal supremacy shall be allowed in the case. — 
The argument is against the woman's bearing sway. Now 
I am as much in fear of such a state of things as the greyest 
sage of the common law. I am contending only for the le- 
gal equality of the sexes ; I am striving to put out of view 
all pretension to the right of coercion by either party. 

Lord Kaimes says " both should govern ; the husband by 
law, and the wife by persuasioji." He is only half right.— 
both should govern ; neither by law, but both by persuasion. 
All the force that can be employed is the proper force of hu- 
man beings, the moral and intellectual powers of their minds. 
If they were regarded as equals, and as intelligent moral be- 
ings, the one that reasoned best and loved most would have 
the supremacy, and the only supremacy consistent with the 
laws of their being. 

Our laws have created a little officer to look after all mar- 
ried women who may be signing deeds and papers " under 
the fear and compulsion of their husbands." He is the only 
legal remnant of the days of chivalry — the only official repre- 
sentative of the spirit of La Mancha's far-famed Knight, who 
went about releasing captive and distressed women from 
their grievous oppressions. This little officer is known as a 
" Commissioner of Deeds. What doth he? Perhafs there 
are few married ladies but have received a visit from this 
worthy little dignitary. He cometh with a deed in his hand 
— he sendeth the husband sneakingly out of the room — he 
goeth up to the wife — he looketh m any direction but that of 
her face — he seemeth ashamed of his errand — he muttereth 
something about "fear and compulsion of her husband" — at- 
tempts to laugh at the idea other fearing her husband, but 
saith something about the law's requiring him to certify as 
to her bravery — he getteth out of the house as quick as pos- 
sible, and feels that he hath done a foolish thing. Did he 
ever extort the confession that a wife had signed a deed from 
fear ? Her pride, her humanity revolt at the idea. We must 
abolish the necessity for this little officer, by denying to the 



THE RIGHTS OF WOMAN. 167 

husband the legal right to inspire fear in the wife, or to co- 
erce her to do any act whatever by physical resorts. 

But this idea of woman-merger, so stupidly adhered to by 
the law, is turned to a benevolent account in relieving the lost 
being from moral responsibility. Husband and wife cannot 
be guilty of a conspiracy, because in the eye of the law they 
are one person. Here both escape from punishment because 
one person cannot conspire to do any act. 

But the law has other benevolent features. It takes the 
sensible ground that none but a rational, moral being can 
commit either theft or burglary ; and as the wife is not re- 
garded as such a being in the presence of her husband, she 
cannot in that dread presence be deemed to have committed 
either of these crimes. The law construes his mere presence 
as equivalent to coercion, and it requires such strong proof 
to rebut its own presumption that it must appear that she 
was the principal instigator of the crime, or she will escape 
all punishment. How consistent is the law in its barbarism ! 
This is a complete demonstration that it regards the moral 
being of the wife as sunk, and, her will completely surren- 
dered to her husband. " So great a favorite of the law is 
female sex !" Hath not woman a right to be ever regarded 
as a free moral agent ? The law takes away this right, and 
boasts that it has created an exemption ! It sets so degraded 
an estimate of woman's moral nature as to consider her inca- 
pable of either committing or abstaining from crime, and 
then boasts its magnanimity in forbearing to punish her ! — 
Why not rather first assent to her enjoying the moral dignity 
pertaining to her nature, and then hold her accountable as a 
human being? If she commit a wrong under actual restraint 
or compulsion, treat her as the law treats other human be- 
ings — as irresponsible ; for no one can be deemed to have 
acted while forcibly restrained by another. "What shame, 
that the law should degrade an intelligent moral being to 
such a degree, that it shrinks from holding her responsible 
for a criminal act ! It is the highest demand of our natures, 
the most sacred right of humanity, to be held responsible at 
all times, and in all conditions, to the moral laws of the Cre- 



168 HUMAN RIGHTS AND THEIR GUARANTIES. 

ator. No sane man or woman can ever forfeit this moral 
eminence, from which flow all human rights and dignity. 

But the legal sacrifice of the wife is yet incomplete ; her 
person, her will, and her moral freedom are not enough for 
her lord's contentment. He must have all ; and what re- 
mains but her worldly estate ? He takes that also. 

By marriage the husband becomes seized of all the wife's 
money and personal effects, and is entitled to treat them ab- 
solutely as his own. In her lands he has an estate in gene- 
ral during his life, and in return he assumes her debts, and is 
bound to provide for her reasonable support and maintenance. 

" So great a favorite is the female sex of the laws of Eng- 
land" and America ! 

Now we have seen in another place that both man and 
woman have an instinctive disposition to acquire and keep 
exclusive property, and that the gratification of this desire 
was ordained by the Creator as a means of happiness — that, 
therefore, such gratification is the right of every human be- 
ing. Here, then, is a surrender of a positive right on the 
part of women by the act of marriage. Is it necessary or 
proper that the law should thus defeat the natural desire of 
any human being ? The laws cannot demand the surrender 
of rights — their office is to protect them. Woman is natu- 
rally sufficiently tenacious of the right of property. If the 
reader is sceptical on this point, let him go and bargain with 
a/emme sole who buys and sells habitually, and return with 
his answer. It is true, that this native disposition of the 
mind may be heightened in its manifestations by frequent 
exercise, as an hour's observation in Wall-street will suffi- 
ciently establish. It is enough for my purpose that woman 
has the native desire of property ; this confers the right, and 
I know not upon what ground her entire surrender of this 
right to her husband, by the mere act of marriage, can be 
justified or excused. 

The possession of property is ordained to be a great means 
of support to one's personal independence. A proper self- 
esteem oftentimes depends upon this possession. The de- 
pendence of one human being upon another is a moral de- 



THE EIGHTS OF WOMAN. 169 

pendence. Domestic and general society results mainly from 
the moral wants of mankind. 

Now, pride, or a feeling of self-dependence, is one attri- 
bute of the human mind. It cannot be lost without a sense 
of degradation. Pride gives tone to human character. A 
dependent and servile human being hath lost a portion of his 
proper humanity — and the laws ought to do nothing to 
create an artificial and unnecessary state of depression and 
dependence in any humau being. Look at the wife in this 
point of view, and behold her after the surrender of her es- 
tate to her husband — a mere pensioner upon his bounty — en- 
titled, it may be, to her reasonable support and maintenance, 
but having to ask for it, to make known her wants ; ay, and 
to satisfy her lord of their reasonableness before he can be 
moved to her relief. " In the general course of human na- 
ture," says Mr. Hamilton, " a power over a man's subsist- 
ence is a power over his will." So a power over a wo- 
man's subsistence may enslave her will and degrade her 
pride. Moreover, the chances for the just exercise of this 
power are not as numerous as could be desired, since he 
who decides upon the wife's requests is interested against 
her wishes — for so much as he withholds from her he re- 
tains to himself. Her sense of justice, therefore, receives 
the next wound and love vanishes. For no woman's affec- 
tion, however strong, can remain long unimpaired after her 
pride has been mortified and her sense of justice outraged 
by her husband.* 

* During a debate in the New- York Legislature of 1840, upon " a bill to incorpo- 
rate the New- York Female Benevolent Society," several members seemed to have 
imbibed the spirit of reform in regard to laws effecting the rights and social po- 
sition of woman, and spoke as follows : 

" Mr. Loomis advocated the bill as one step toward recognizing the separate 
existence of females. 

11 Mr. Culver said there was one feature in this bill of which he heartily ap- 
proved. It was that which exempted the husband from any liability for the wife's 
subscriptions. * I long,' said Mr. C. 'to see the day when legislation shall give to 
women some right of possession in their own property.' 

" Mr. Simmons agreed with the gentleman from Washington, in expressing his 
hopes that the law would be modified in relation to the rights of married women, 
but he doubted the propriety of commencing this reform by an act of incorpo- 
ration. 

" Mr. Stoddard stated that he would be glad to see the day when the female sex 
should have their own control over their own property — when they should be no 
longer subjected to the caprice and oppression and the ill treatment of the idle and 
the vicious men to whom it may be their lot to be united. 

15 



170 HUMAN RIGHTS AND THEIR GUARANTIES. 

Moreover, if the husband really fears that the wife is un- 
fit to appreciate the value of property, he has but to allow 
her the same means he himself enjoys for the gratification 
of her innate love of it, by allowing her to acquire and pos- 
sess it ; and all analogy shows that she will be very soon 
well enough improved in the very point he would attain. 
She will come by degrees to appreciate property as well as 
himself, and the more she shall exercise the faculty of ac- 
quisitiveness, the stronger it will become. She now is some- 
times inclined to regard the property of her husband as a 
stranger's — it is not her own — and all she spends of it is clear 
gain to herself. She is not allowed to indulge the desire of 
possession. Its activity would be a salutary check upon 
needless expenditure. 

She would soon look upon him with great respect for his 
love of money. She would think him, on the whole, as 
rather a sensible man than otherwise, and she might be in- 
clined to imitate her lord's example. Husbands had better 
try the experiment at any rate. They now keep their wives 
from the exercise of acquisitiveness, and still complain that 
they are deficient in that respect; and this with the same 
justice that a parent could complain of a child for being de- 
ficient in music, after having strictly prohibited it from all 
instruction and exercise. But I wish to treat of the justice, 
not the expediency, of this matter. Woman has the right of 
property, and the husband has no right to demand its surren- 
der by the act of marriage, and the law ought not to sanc- 
tion it. If a woman of proper age and discretion chooses vo- 
luntarily to surrender a part of her property to her husband 
by an ante-nuptial agreement, there seems not to be any ob- 
jection to this, provided the law shall properly guard the 
mode of her doing it ; but an implied surrender by force of 

" Mr. M'Murray hoped the period would soon arrive when very great and serious 
alterations would be made in our statutes relative to the rights of married women. 
These laws have been handed down to us from dark feudal times, and are not 
consistent with the better, wiser, purer spirit of the age. The poor female, sub- 
jected by laws, in the making of which she has had no voice, to the grasp of the 
merciless creditor of the dissolute husband, finds her property, earned by her 
own hard labor, swept away. 

•' The adversities of the last few years had 6hown thousands of instances where 
the laws visited upon the wife the misfortune or imprudence of the husband. " 



THE RIGHTS OF WOMAN. \\ I 

law is entirely destitute of foundation in reason and justice. 
It seems to me that the law should leave the woman's for- 
tune in her own hands, and under her perfect and free con- 
trol to the same extent after marriage as before. Then as 
regards the acquisitions of property after marriage, it seems 
to me that the parties ought to be treated as holding it joint- 
ly between them, and the whole to go to the survivor. 

A bill was lately pending before the Legislature of the 
State of Missouri, which if passed, would greatly improve 
the condition of married women in respect to the right of 
property. It provides that — 

" All the property owned by the wife, at the time of the marriage, and 
all she may acquire during the marriage, by descent or gift, shall be call- 
ed ' the wife's separate property.' 

" All the property which shall be acquired during the marriage, either 
by the husband or by the wife, except that which is acquired by de- 
scent or gift, shall be called ' common property.' 

" The husband's separate property shall be liable for his debts contracted 
before and after the marriage, but shall not be liable for the debts of the 
-wife. 

" The wife's separate property shall be liable for her debts contracted 
before the marriage, but shall not be liable for the husband's debts, con- 
tracted before or after the marriage. 

14 The husband shall have unrestricted power to alienate and dispose of 
his own separate property, and to alienate and dispose of the common 
property during the marriage ; except that the common property which 
is real estate shall not be alienated or disposed of, unless the wife join the 
husband in the conveyance. 

" The husband may, during the marriage, alienate and dispose of the 
wife's separate property, if the wife give her consent thereto in writing." 

This latter clause, it seems to me, confers too much au- 
thority upon the husband. He ought not to be empowered 
to alienate her separate estate, without the order of a court 
of competent jurisdiction, which should ascertain that it was 
the true interest of the wife to consent to the transfer of 
her estate, and require an equivalent hi value to be settled 
upon by the husband. 

Let us carry the principle of equality into the married 
state, and allow the wife to know and feel that she is truly 
the partner and equal of her husband. If she has not been 
a " silent partner" hitherto, she has at least been a very " dor- 
mant" one. My proposition is not new. The common law is 
altogether at variance with the laws of France, Spain, Hoi- 



172 HUMAN RIGHTS AND THEIR GUARANTIES. 

land, and with the laws of one of the States of this Union, 
(Louisiana,) in regard to the marital rights — and especially 
as to the wife's right of property. Community of property be- 
tween husband and wife exists to a certain extent in most 
civilized countries where the common law of England does 
not prevail. The civil law is the friend of woman, and as 
respects her moral freedom and her right of property tends 
to exalt her condition and to render her conscious of her 
equality with man. I leave this subject to the reader's con- 
sideration — and I fear that the same objection may prevail 
against me, as against the laws of which I have complained 
— that of having done injustice to the rights of woman. 



CHAPTER IX. 

OF THE RIGHT OF PROPERTY AND ITS MORAL RELATIONS. 

If a quantity of corn be thrown upon the ground within 
reach of a flock of fowls, each one will greedily devour all 
that is required to satisfy its appetite, but will go away with- 
out caring as to what remains, and without gathering up or 
secreting any thing for future use. 

If there shall be exposed to the reach of many of the tribes 
of squirrels certain nuts which they take as food, you will 
observe that they will take not only for immediate consump- 
tion, but will carry to their nests a very considerable supply 
and hoard it up. 

In the former case the animal has not an instinct to hoard, 
while in the latter this instinct exists. It is an innate pro- 
pensity, and has no dependence whatever upon the sagacity 
ot the animal. That sagacity may aid the animal in carry- 
ing this native desire into execution, but it does not call the 
desire into being. The propensity results from the animal's 
organization. It exists also in man as a native instinct, not 



OF THE RIGHT OF PROPERTY, ETC. 173 

dependent upon his intellectual perceptions for its origin, but 
only for its means of direction and gratification. " Man," 
says Lord Kaimes, " is a hoarding animal, having an appe- 
tite for storing up things of use." 

The phrenologists regard this appetite as an innate pro- 
pensity, having its seat in a particular and well-defined por- 
tion of the brain, whose exclusive function it is to manifest 
this desire, by them denominated Acquisitiveness. It is the 
desire of acquisition, the love of possession. It may exist 
without the power of reason ; nay, it may defy that power. — 
It may exist without the human sentiments ; nay, it may 
rage in opposition to them. It is, in the abstract, a blind 
passion, without moral or intellectual aim — happy in posses- 
sion, without knowing why — relishing gratification, and 
pained upon denial. Of itself it has neither reason, con- 
science nor pride. It asks not why or wherefore it should 
be gratified. It cares not who is pained, so that it be pleased. 
It is happy, but not proud of its possessions. 

In the abstract, then, this instinct in man enjoys no greater 
dignity than in animals ; and, regarded of itself alone, would 
claim no higher consideration. But the moment you con- 
sider man as endowed with reasoning faculties, to discover the 
end to which the fruits of his acquisition may be devoted, this 
blind instinct assumes a new importance and dignity. It is 
relieved in a great measure from its animal estate, and takes 
a more elevated position. It becomes an enlightened pas- 
sion. Utility springs up where blind possession reigned, and 
order bears sway where all before was confusion. The innate 
desire is still as strong as ever, but it spends its force in a 
new direction. It ceases to control the will of the animal, 
and is tutored to obey the will of man. Thus, under the 
guidance of human reason, this desire prompts man to guard 
against want, and becomes essential to his life and safety. — 
It is now a desire, whose enlightened gratification is of pri- 
mary necessity to his bodily welfare, and, therefore, lays the 
foundation of a right, but not a right of the most sacred char- 
acter. It is a right pertaining to his animal existence as one 
means of its preservation. That existence itself is, as yet, of 

15* 



174 HUMAN RIGHTS AND THEIR GUARANTIES. 

little value, and the means of its preservation cannot rank 
higher than the end which it subserves. 

So far I have considered this instinct as associated only 
with the powers of reason. Let the sentiments proper to 
man now be added to the account, and the case is greatly 
magnified. The instinct to acquire, remains, demanding en- 
lightened gratification as a means of preserving life, and 
of ministering to a new existence. Not an intelligent 
animal only, but a moral being, is now to be preserved and 
gratified ; a man, endowed with conscious pride, with holy 
reverence, with gladdening hope, the love of the beau- 
tiful and perfect, and sweet benevolence — a sense of justice 
crowning all and sternly demanding the right. His existence 
is clothed with a new and awful dignity; and whatever 
tends to its preservation — whatever favors its gratification 
now, is far more sacred and important than before. Disturb 
him now in his acquisitions, and you wound not an animal 
instinct alone, but you deprive him of that which ministers 
to his higher nature, and you wound him there. You wrest 
from him one of the supports of his independence, and his 
pride is mortified ; you blast his hopes — take from his be- 
nevolence the means of accomplishing its blessed work — em- 
barrass his aspirations to the beautiful and perfect, and out- 
rage his quick sense of justice. You have now stung his 
moral nature with anguish, and outraged right — a right now 
consecrated by the most sacred emotions of the mind. 

The humble instinct with which we started now minis- 
ters, under the guidance of reason, to the moral wants of a 
noble being ; a man, aspiring to the perfection of his exalted 
nature — a member of human society, filled with the love of 
his brethren — a parent, training for happiness the offspring 
of his sacred love ; and ends like these consecrate the means 
of their attainment. One of the greatest of these means is 
property, and hence the sacred inviolability of the right. 

A being endowed with an instinct to acquire, and self-es- 
teem alone, with no more intellect than would suffice to 
gratify this solitary propensity and sentiment, placed in man's 
circumstances, would have a species of right to exclusive 



OF THE RIGHT OF PROPERTY, ETC. 175 

property. The enjoyments which such a being would derive 
from wealth would be of. a very narrow and selfish charac- 
ter. Such a being is not altogether fictitious; but Nature is 
too kind to allow many such to appear among us, and proba- 
bly designed them as human contrasts, that we may the bet- 
ter appreciate the genuine, the sterling man. 

After taking this view of the subject, we may be surprised 
to find that the origin of the right of property has been re- 
garded as doubtful or obscure by the most intelligent writers 
upon natural law. 

Sir "William Blackstone speaks with little certainty upon 
this subject, saying, 

" That the original of private property is probably founded in nature " 
— " but certainly that the modifications under which we find it, the method 
of conserving- it to the present owner, and of transferring it from man to 
man, are entirely derived from society, and are some of those civil advan- 
tages in exchange for which every individual has resigned a part of his 
natural liberty."* 

Some writers refer the right of property in land to occu- 
pancy — contending that this alone not only conferred the right 
to use the soil, but also the original right to the permanent 
property in the substance of the earth itself — and that this 
occupancy is founded upon the implied consent of all man- 
kind, that the first occupant should become the owner ; while 
others admit that occupancy confers this right, but lay out the 
implied consent of mankind as unnecessary, alleging that the 
very act of occupancy alone, being a degree of bodily labor, 
is sufficient of itself to gain a title.f 

Mr. Locke says ; 

" That the labor of a man's body and the work of his hands, are proper- 
ly his. Whatsoever, then, he removes out of the state that nature has 
provided and left it in, he hath mixed his labor with, and joined to it some- 
thing that is his own, and thereby makes it his property." 

Mr. Christian denies the soundness of this proposition, and 
says : 

" That mixing labor with a thing can signify only to make an alteration 
in its shape and form — and if I had a right to the substance before that 
labor was performed upon it, that right still adheres to all that remains of 

* 1 Bl. Com. p. 139. t See Bl., vol. 2, p. 8. 



176 HUMAN RIGHTS AND THEIR GUARANTIES. 

the substance, whatever changes it may have undergone ; if I had no right 
before, it is clear that I have none after, and we have not advanced a sin- 
gle step by this demonstration." 

He continues — 

" But how or when does property commence ? I can conceive no bet- 
ter answer can be given than by occupancy, or when any thing is sepa- 
ratsd for private use from the common stores of nature. This is agreeable 
to the reason and sentiments of mankind prior to all civil establishments. 
When an untutored Indian has set before him the fruit that has been 
plucked from the tree that protects him from the heat of the sun, and the 
shell of water raised from the fountain that springs at his feet, if he is driven 
by any daring intruder from his repast, so easy to be replaced, he instant- 
ly feels and resents the violation of that law of property which nature 
herself has written upon the hearts of all mankind. 11 

On the other hand, Mr. Bentham says : 

"Property and law are born together, and die together. Before laws 
were made, there was no property; take away laws and property 
ceases."* 

He, however, admits that in the natural state, man had an 
expectation of enjoying property, to a limited extent: 

" It is not known," says Mr. J. Fenimore Cooper, " that man exists 
any where without establishing rales for the protection of property. — 
Even insects, reptiles, beasts, and birds have their possession in their 
nests, dens, and supplies. So completely is animal exertion in general 
whether in man or beast, dependent on the enjoyment of this right, under 
limitations which mark their several conditions, that we may infer that 
the rights of property, to a certain extent, are founded in nature. The 
food obtained by his toil, cannot be taken from the mouth of man or beast, 
without doing violence to the first of our natural rights. We apply the 
term of robber or despoiler to the reptile or bird that preys on the aliment 
of another, as well as to the human thief. ''t 

But Chancellor Kent regards the right of property as de- 
rived from the organization of the human mind, and treats of 
its relation to the human sentiments with far greater truth 
and clearness than any of the preceding writers. He says : 

" The sense of property is inherent in the human breast, and the grad- 
ual enlargement and cultivation of that sense from its feeble form in the 
savage state, to its full vigor and maturity among polished nations, forms 
a very instructive portion in the history of human society. Man was fitted 
and intended by the author of his being for society and government, and 
for the acquisition and enjoyment of property. It is, to sj?eak correctly, 
the laiv of his nature — and by obedience to this law, he brings all his facul- 
ties into exercise, and is enabled to display the various and exalted pow- 

* 1 Bentham's Theory of Legislation, p. 139. | 2 Kent's Com. 318 



OF THE RIGHT OF PROPERTY, ETC. 177 

ers of the human mind." "The natural and active sense of property 
pervades the foundations of social improvement. It leads to the cultiva- 
tion of the earth, the institution of government, the establishment of jus- 
tice, the acquisition of the comforts of life, the growth of the useful arts, 
the spirit of commerce, the productions of taste, the erections of charity, 
and the display of the benevolent affections. '* 

It is, however, obvious that no adequate conception can be 
formed of the right of property, the protection which it re- 
quires, and the manner of its enjoyment and transmission, 
without a true mental philosophy, which shall unfold the in- 
nate powers and dispositions of the human mind, and their 
relation and adaptation to external nature. 

Let us, then, inquire more particularly into the relation 
which property bears to mankind, the diversity of their pow- 
ers for its acquisition, and into human laws regarding its ac- 
quisition, and protection ; reserving for future examination 
some of the subjects of the right of property, and its trans- 
mission upon the death of the owner. 

And first, we have seen that man's simplest relation to pro- 
perty is that of an animal, desiring its acquisition with an in- 
telligent design. A few primary ends are answered by its 
possession, and these are the ends of mere animal desire. — 
His love of food, of safety, and of life, must be gratified. — 
His intellect guides the acquisitive instinct to the attainment 
of these simple ends — which done, his animal wants are sat- 
isfied. If man regarded property with no higher aim than 
this, his acquisitions if limited by his rational faculties would 
be extremely small. As he perceived the limit of these sim- 
ple wants, they would define the extent of his possessions. 
The animal would now be satisfied — but the man would not 
be content ; and why ? Because the same intellect which 
should perceive the true relation of property to his animal na- 
ture, would also as clearly perceive its relation to the human 
sentiments, and these demand more extended possessions for 
their indulgence and gratification. Accordingly, man is im- 
pelled by his moral emotions to increase his acquisitions of 
property. The pursuit of property has now a moral aim, and 
its character and dignity depend wholly upon the moral con- 

* American Democrat, p. 136. 



178 HUMAN RIGHTS AND THEIR GUARANTIES. 

stitution of the person in quest of it. If self-esteem be the 
reigning sentiment of his mind, it will be sought as the means 
of gratifying his pride ; if love of approbation bear sway, he 
will pursue wealth to gratify his vanity ; if philoprogenitive- 
ness lead his faculties, he will hoard for his children ; if rev- 
erence be greatly predominant, he will gather property to 
erect temples for Divine worship ; if the love of the beauti- 
ful predominate, he will seek wealth in order to expend it in 
cultivating the arts, improving his grounds, and surrounding 
himself with order and beauty ; and if benevolence be his 
controling sentiment, he will regard wealth as the means of 
doing good to others, and expend it in acts of charity and 
general beneficence. If, however, the moral forces of his 
mind be properly balanced, he will not seek wealth for the in- 
dulgence of any single sentiment, but for the harmonious 
gratification of his entire moral nature. An enlightened 
sense of justice will dictate the means of acquiring wealth — 
and all the remaining moral wants of his nature will in their 
turn be subserved by its expenditure. 

Thus do we ascertain not only the source of the simple 
right to exclusive property — but also of the higher and more 
sacred right to exclusive wealth. The former has an hum- 
ble origin and a narrow limit: the latter a high moral use, 
and its limit cannot be defined. The one pertains to an in- 
telligent animal, as a simple means of preservation — the other 
pertains to an intelligent moral being as a means of perfect- 
ing his greatest happiness. I infer from these premises, that 
the Creator designed that man, as an intelligent moral being, 
should enjoy not only so much property as will satisfy his 
mere animal wants — but that he should strive for and attain 
something of wealth also, to minister to the high demands 
of his moral sentiments. Wealth, then, in this view of the 
subject, is any excess of property beyond what is required to 
satisfy the simple wants of man's animal nature — and his re- 
lation to wealth is that of an intelligent moral being, strug- 
gling for its acquisition and protection, as a means of satisfy- 
ing the wants of his moral sentiments. The pursuit of wealth, 
then, by mankind, is natural, meritorious, and rightful — its 



OF THE RIGHT OF PROPERTY, ETC. 179 

true enjoyment a moral happiness, and its exclusive posses- 
sion a sacred natural right. 

The abuse of wealth consists in allowing it to minister to 
the animal appetites chiefly, or in expending it to gratify 
some one or more of the sentiments to the exclusion of the 
others — and not appropriating it to the harmonious gratifica- 
tion of all the sentiments proper to humanity. The abuse 
first mentioned is a moral offence, and may so endanger society 
as to require legal prevention ; while the latter abuse can 
scarcely be evidence of such moral turpitude, as the laws of 
man ought to recognize. The laws may prevent the minis- 
tration of wealth to low animal indulgence, but they may 
not restrain excessive benevolence, nor overweening pride, 
nor foolish vanity. A man may bestow his wealth on an un- 
worthy charity, and we can only regard it as a weakness ; or 
he may impoverish himself by dress and vain display, and 
we cannot complain of him to the police. He has a right to 
be a fool, if nature made him so ; but we cannot safely allow 
him to be a knave, whether Nature made him such or not. 

Wealth, then, is to be regarded as a means, and not as an 
end ; and unless it constantly subserve the sentiments, and is 
used to exalt the moral nature of man, it hath little utility or 
dignity, and is to be regarded as an useless heap, gathered to- 
gether under the impulse of an animal instinct, and retained 
only to gratify a blind propensity. To pursue it from the 
mere love of possession, is to allow an animal feeling to con- 
trol the man, and gives to a mere propensity the sovereignty 
of the mind. This subjugation of the intellectual powers of 
a noble being to the service of an animal instinct, sometimes 
occurs in society ; and the miser's wealth is so blindly grasped, 
that it scarcely satisfies the pressing wants of his animal na- 
ture. His intellect merely guides him in the mode of its ac- 
quisition—it is not exercised to discover the utility of wealth. 
He has it, and yet the man possesseth it not — but only the 
animal. Wealth is acquired by means of the intellect acting 
under the impulse of an animal instinct: it is enjoyed only 
through its ministration to the wants of man's superior sen- 
timents. An intelligent animal may acquire, but a moral be- 
ing only can enjoy, wealth. 



180 HUMAN RIGHTS AND THEIR GUARANTIES. 

I come next to inquire into the diversity of men's naturaJ 
endowments with reference to the acquisition of property, 
for upon these depend, in a great degree, the inequalities o, 
their estates. 

If an animal having an instinct to hoard his proper food, 
be placed among other animals which have not this instinct, 
the former will soon be found in possession of a considerable 
store of provisions — while the others will be destitute of any. 
This result would inevitably follow from their respective or- 
ganizations. The instinct of the hoarding animal would 
prompt to the employment of its faculties in obtaining this 
particular gratification ; and it would succeed, because Nature 
having given the desire, surrounds it with the means of grati- 
fication, according to her uniform law. Moreover, the hoard- 
ing animal would encounter no opposition from those that 
hoarded not — since their natures do not impel them to a com- 
petition in this respect. The former, then, would be gratified 
in proportion to its natural desire for acquisition — its faculties 
to attain its ends, and the amount of competition or other em- 
barrassments in the way of its selfish gratification. In the 
circumstances supposed, if this animal desired to possess all, 
and had the faculties to compass all, it would necessarily 
take and retain all, to the exclusion of others. 

Let us now change the case, and suppose many animals 
placed together in circumstances favorable to the gratification 
of their natures, all having the innate desire to hoard up food . 
what now will be the result ? Each animal will hoard, and 
the amount of its stores will be proportionate with its instinct 
to acquire — its faculties to attain its objects — and the num- 
ber of its competitors. By the law of their natures, all these 
animals must have something — dependent as to quality upon 
each animal's organization, and its external circumstances. 
Now if all these animals should be endowed with equal love 
of acquisition, and equal faculties to gratify it, and should be 
placed in equal external circumstances, their possessions 
would be equal ; as like causes must produce like effects. — 
But if they should be endowed either with unequal desire 
of acquisition, or unequal faculties for its gratification, or 



OP THE EIGHT OF PROPERTY, ETC. 181 

should be placed in unequal external circumstances, their 
possessions would also be unequal. 

We may conclude, in reference to these animals, that if 
nature designs an equality in their possessions — they will be 
found to be endowed with equal instinctive and intellectual 
forces — and be placed in like external circumstances ; and 
the reverse must also be held. But Nature delights in diver- 
sity throughout all her works — she maketh not only the va- 
rious tribes of animals to differ from each other, but causeth 
the several individuals of the same race to differ in the force 
and activity of the various instinctive and intelligent powers 
of their nature, and placeth them in circumstances also 
greatly differing — so that natural equality doth not exist 
among them. 

The same natural diversity obtains among men, and like 
results follow. 

One man is endowed by Nature with a strong instinct to 
acquire, with liberal faculties for the attainment of wealth, 
and is placed in circumstances favorable to the gratification 
of his wishes. He amasses large possessions by the concen- 
tration of his mental faculties upon this object alone. — 
Another man, his nearest neighbor, it may be, has an equal 
endowment of the acquisitive instinct, and enjoys the same 
external advantages, but has not an equal endowment of in- 
tellect to perceive the best method of attaining wealth, or 
he lacks firmness or perseverance of character, and so he ob- 
tains less. 

Another with equal instinctive impulse, and equal facul- 
ties to subserve it, may, in the course of his life, have at- 
tained as much property as the man first mentioned, but hav- 
ing all along perceived its true use, may have expended it 
largely in the gratification of his taste ; in acquiring knowl- 
edge, and acts of benevolence, so that he cannot now exhibit 
so large a pecuniary estate ; but he is in a far better moral 
condition. 

Another man may have the most favorable endowments 
for the acquisition of wealth, and may have excelled all be- 
fore named in the amount of his accumulations ; but from too 

16 



182 HUMAN RIGHTS AND THEIR GUARANTIES. 

sanguine hope, or excessive credulity, or gross fraud, may 
lose in a day the fruits of many years of anxiety and toil. 

Let those who modestly demand an equal distribution of 
property in the halls of human legislation first raise their 
cry in the temple of nature, and if possible obtain a reversal 
of those stern decrees of Fate, which have ordained a great 
part of the inequality of which they complain. Let those 
who ask for a " division of property every Saturday night," 
be first certain that all men had an equal start on the previ- 
ous Monday morning; and if they find that Nature has been 
guilty of foul play in the premises, by favoring one man above 
another, let them take such course as their sages shall ad- 
vise to remedy the mischiefs of Fate ! They will perhaps 
point out a mode by which the gradations of Nature may be 
abolished ; by which all creatures shall be made men ; and 
all men become equal and alike in form, countenance and 
faculties, so as in no way to be distinguishable, the one from 
the other, either physically, intellectually, morally or other- 
wise ; and thus would be produced a glorious equality and ex- 
act uniformity, so that whosoever should see and know one 
of these new-born creatures, would know the form and fac- 
ulties of every dweller upon the earth ! 

This might produce considerable monotony, some incon- 
venience, and a loss of many comforts derived from the ani- 
mal creation. We should, for instance, have to dispense 
with oysters altogether ; every one of these interesting crea- 
tures would become a man, and would be as likely to devour 
others as to be eaten itself! 

But to be quite serious. The laws of man's mental organ- 
ization indicate the acquisition and enjoyment of exclusive 
property, and hence the right of property. But these laws 
certainly do not indicate any natural design that all men 
shall possess an equal amount of property ; but so far as we 
can interpret these laws the reverse is established. It fol- 
lows, then, that the right of property in man must be recog- 
nized and sacredly protected by human laws ; but the amount 
of each individual's acquisition is to be left to the laws of 
his organization. Human laws must protect whatever he 



OF THE RIGHT OF PROPERTY, ETC. 183 

hath ; bat he must have a higher dependence than these for 
the magnitude of his possessions. 

Let us now see what human laws have to do with the 
modes of acquiring property ; and it seems to me that they 
have but one office to perform, and that is to prohibit its ac- 
quisition by any means which shall offend the enlightened 
moral sentiments of mankind. • It is not the office of the laws ! 
to aid the faculty of acquisitiveness — the best service they 
can do to man in this respect is to let him alone — neither to 
aid, obstruct or direct his faculties, but to leave him to his 
natural destiny. 
I This would dispense with many volumes of human legis- 
lation, every chapter of which tends to increase the difficul- 
ties of men's conditions, to create artificial agents and res- 
ponsibilities among them ; to foster partiality and favoritism, 
and to produce such a general complaint against the unequal 
distribution of the blessings of wealth. We have seen that 
a natural disparity exists among men in regard to these pow- 
ers of acquisition ; but that the general design appears to be 
that all men shall have not only property sufficient to satisfy 
their animal wants, but an excess beyond that for the grati- 
fication of their moral natures. And as a general thing, in 
the absence of unwise and unjust human laws on the subject, 
the great mass of mankind would attain the means of such 
moral gratification. The laws of all countries interfere too 
much in regard to the means of acquiring property ; and the 
inequality and injustice of most of them are too flagrant to 
require pointing out. It is to the more subtle and less per- 
ceptible aggressions of our own laws that I wish to call the 
reader's attention, and ask him to notice a few instances of 
their wide departure from the obvious precepts of the natu- 
ral laws. 

We have seen that man was ordained to live in the social 
state ; and we established this from his mental constitution, 
by which he seems destined to live and move among intelli- 
gent moral beings, and among such only. Every agent 
which is brought in contact with him, must be so constituted 
as to have moral responsibility. He cannot, from the very 



184 HUMAN RIGHTS AND THEIR GUARANTIES. 

laws of his organization, properly meet and deal, as a man, 
with any other. ]Now your laws create artificial persons by 
thousands, under the names of bodies corporate, and bid 
them compete with men in the acquisition of wealth. The 
Creator has mercifully omitted to place among intelligent 
moral beings these monsters — with instincts to grasp, and 
faculties to acquire, but without a moral or restraining na- 
ture. A man is single, and relies upon his individual re- 
sources ; a corporation, embracing the consolidated powers of 
many, overbears and defeats individual exertion. The crea- 
ture whom God made, retreats before the offspring of man's 
own creation. A man is of slow growth, and passes through 
various stages of weakness to his final maturity; while this 
artificial person springs from your statute-book full grown, 
mature and ripe for action. A natural person may be afflicted 
by disease, so that his success may be impeded ; while your 
legal creature suffers from nothing but legal difficulty. Man 
has a moral nature, which restrains him from meanness, 
fraud and selfishness ; while this artificial person knows no 
restraint but that which proceeds from the laws, and these 
are too often of its own ordaining. The man has moral 
wants, that require gratification as he journeys on through 
life ; but this artificial person has no want but money. Man 
has a conscience ; while this creature has only a sense of ex- 
pediency. The former sacrifices pecuniary to moral inter- 
ests ; while the latter doeth the reverse. Man stretches out 
his hand to relieve ; while a corporation reaches it out only 
to receive. Man has at stake upon his conduct in society, 
his honor, conscience, liberty, happiness, and life itself; 
while this artificial being has nothing at stake but its char- 
ter. And lastly, man dies before his plans are executed ; but 
this being having perpetual succession, lives on — and when 
it ceases to exist, nobody dies, but a corporate body. f* 

Now, who doth not perceive that the creation of such an 
artificial person, with a legal instinct to acquire, with legal 
powers to obtain wealth, but destitute of any but legal e?no- 
tiortSy is but a contrivance to avoid the restraint and incon- 
venience of man's moral nature in the acquisition of wealth ? 



OF THE RIGHT OF PROPERTY, ETC. 185 

What better method for such evasion could be contrived ? 
Perhaps a true conception of the Evil One is that of a being 
endowed with a mighty intellect, but utterly destitute of any 
moral emotion, save that of pride alone. The indefinite 
multiplication of such creatures upon this earth, to compete 
with moral beings, would soon discourage its present inhab- 
itants, and a large human emigration hence would be the 
probable result ! 

«f Corporate bodies, as organized in this country, are in gen- 
eral exempt from complete pecuniary responsibility. They 
respond to their debts only to the extent of their stock : the 
holders of it are not in general personally responsible. 
Through the means of a corporation a man may risk any 
sum he pleases upon an adventure for gain, by taking a par- 
ticular amount of stock ; the adventure may prove disastrous 
through want of skill, integrity, or from any other cause, 
and the corporator loses only the sum which he paid for the 
stock — although the adventure may have sunk three times 
that amount ; while a natural person, who should embark in 
a similar adventure and fail to the same extent, would be 
required to respond to the whole amount of the loss, let the 
sum originally advanced in the enterprise be what it might. 
The corporation may wholly fail, and yet all the stockhold- 
ers may remain rich. They have, therefore, all the chances 
and advantages of gain which a natural person enjoys, and 
are exempted from the same extent of loss. Here is a privi- 
lege and an exemption indeed ! How much more consider- 
ate is the law of its own creatures, than of the creatures of 
God! 

Here is an artificial person, dealing among men, without 
moral, and with a limited pecuniary responsibility. But in 
regard to the former, it may be said, that a corporation has 
an aggregate moral existence — that being composed of men, 
human sentiments enter into its constitution. If this could 
be proved by argument, it would be contradicted by experi- 
ence. Is not the contrary demonstrated by its action ? Is it 
benevolent ? Let its records bear witness that it feels for 
men's pockets rather than for themselves. Is it religious ? 
16* 



186 HUMAN RIGHTS AND THEIR GUARANTIES. 

Alas ! it " has no soul " to save ! Is it just ? As the law 
compels it. Is it honorable ? None answer for it ; and it 
has no back to scourge, no body to pierce. Has it passion ? 
Ay ; one mean passion — Avarice — whose bounden slaves are 
the agents of the corporation. This passion, and its demon- 
stration through these agents, are all that is felt or known 
of this artificial person. It is an acquisitive monster, with 
human intelligence, but without moral emotion or aim — a 
Ralph Nickleby in character, but destitute of his amiable 
relatives.* 

But it is said, that if corporators were held in every way 
responsible, as natural persons — nobody would take a char- 
ter. Then I answer, so much the better for the natural man 
—the world's business would be conducted by human agents, 
as seems to have been the natural design. 
^ But then is there no fear that a great many things could 
not be done by natural persons, which are now accomplished 
by corporations ? I answer that a combination of wealth 
and effort can exist among men without corporations — and 
that it seems probable that nature did not contemplate any 
action in this world except by natural persons — and if so — 
then what they cannot do, may be very properly left undone. 
The great design of nature is the perfection of moral beings 
in excellence and happiness. Wealth ministers to the accom- 
plishment of this design — but no more is necessary for this 
purpose, than can be attained by individual exertion or by 
simple association. The true " internal improvement," is that 
of the inner man. The best road man can travel is the high- 
way to happiness — and the only " works " which benefit that, 
are those which improve his moral and intellectual powers. 

Our generation has run wild after physical improvement. 
External nature has been fashioned anew. We have over- 

* There ■would be more difficulty in awakening the moral sense of a corpora- 
tion, than Rowland Hill experienced on a particular occasion — when his chapel 
having been infested by pickpockets, he took occasion to remind the congrega- 
tion that there was an all-seeing Providence to whom all hearts were open, and 
from whom no secrets were hid ; " but lest," he added, " there may be any present 
who are insensible to such reflections, I beg leave to state that there are also two 
Bow-street officers on the look-out !" [London Qr. Rev. for Dec. 1840.] A corpo- 
ration would be alike insensible to either of these admonitions. 



OF THE RIGHT OF PROPERTY, ETC. 187 

come time and space — outdone our ancestors, and overdone 
ourselves. It may be well to pause and consider whether 
ours has not been a mere physical movement — which has 
sent the animal ahead with railroad velocity — but left the 
moral nature of man to come on behind at the old ox team 
pace. I incline to the opinion, that we had better stop our 
cars until our better-selves shall join us — so that when we 
start again, we shall at least have our old friend Common 
Honesty, for a travelling companion ! Our fathers were ac 
quainted with several plain and homely virtues — that have 
been strangely forgotten by their children, since they have 
set up for such smart people ! We boast of having " over- 
come distance," let us try to overcome that fearful distance 
at which we stand removed from the integrity, purity, and 
patriotism of our noble ancestors. Let moral, intellectual 
improvement, be the chief aim of our citizens. The salva- 
tion of the Republic depends upon it. 

Again, credit and confidence are already provided for by 
the natural laws — they are the offspring of the moral consti- 
tution of mankind ; and human legislators have seldom at- 
tempted to meddle with them without injurious results. 

The true " Credit System " is the creature of Divine and 
not human laws. Man is endowed with the sentiments of 
faith, hope, and benevolence — with an intellect to enlighten 
and guide them. These respond to the demand of every in- 
dividual who addresses them — and repose upon his intelli- 
gence, truth and justice. He speaks truly and is believed — 
asks aid and it is granted to him — seeks credit and it is 
awarded to him as he may seem to deserve. Man was or- 
dained by the laws of his being to have faith in man — an en- 
lightened and sacred faith, in an intelligent moral being. 
Now if the sentiments which originate this faith shall be 
trained by wholesome exercise and enlightened by the in- 
tellectual faculties, blind credulity will not be substituted 
for reasonable confidence nor delusive hope for rational ex- 
pectation — and the experience of mankind will enable them 
to determine with a great degree of safety in what cases and 
to what persons they may extend their confidence and trust. 



188 HUMAN RIGHTS AND THEIR GUARANTIES. 

These would be given to good sense, integrity, skill, econo- 
my and industry alone. A man possessing these, demands 
the confidence of his brethren — and they necessarily repose 
their faith in him. 

It is neither correct in morals, nor safe in business to trust 
to property alone. Credit must be given to the man, and not 
to his external circumstances. The man changes not — but 
his circumstances ever change. In the first case you risk 
only the life of your debtor — while in the latter case you risk 
a mistake in the genuineness of appearances — the errors of a 
weak understanding — the danger of fraud — the mistakes of 
ignorance — and losses arising from idleness and inattention 
to business. These, or any one of them, may in a very short 
time lose, squander, or conceal all the property which you 
trusted — and that gone, you have no reliance but upon the man 
himself — and him alone you had not trusted — and would not 
trust. But if you base your confidence upon the qualities of 
the man alone — you but follow the impulses of your enligh- 
tened moral sentiments — and your only hazard rests upon the 
life of the man. Upon this principle credit would be a mat- 
ter of moral concern — and intellectual and moral wealth 
would be a sort of capital in trade. " Thrift would not fol- 
low " lying — and in general a man would have first to be- 
come bankrupt in his intellectual and moral estate, before he 
would be bankrupt in trade. 

This is Nature's Credit System — and those who are not 
furnished with the capital which it demands, must even — 
" buy for cash." But not content with this simple foundation 
of all credit and confidence, the social body set about making 
laws which throw new elements into the system of credit — 
and ordain for man an artificial Faith, grounded upon legal 
appearances. 

The laws create corporate bodies — declare them worthy to 
be trusted, and demand public confidence in their behalf. 
But does the law endow its creatures with sound judgment, 
high integrity, consummate skill, careful economy, and unti- 
ring industry, the necessary elements of credit, and business 
worth ? Surely not. For the particles of which the body of 



OF THE RIGHT OF PROPERTY, ETC. 189 

this artificial person is composed, may change every day — 
and, unlike the component parts of the natural body, may 
not be replaced in kind — but by inferior materials ; and what 
the law at its creation pronounced to be very good may in 
a short space of time become very bad — and yet the law still 
proclaims it good. Nay, the law may have mistaken its 
qualities at the beginning — and a mistake in the law is very- 
easy — for it is not unjustly charged with "uncertainty." 
Upon the natural laws, which have a divine origin and a 
certain operation, man may rely ; but when he trusts to the 
artificial creation of human laws, he prefers the counterfeit, 
to the genuine coin. 

The most sagacious men in society may not place as much 
faith in a legal effigy as in a true man ; but be it remember- 
ed that in the common mind there is a great reverence for 
what the laws ordain ; (and this is fortunate, when the laws 
are just ;) so that too many may be deceived by the implied 
public guarantee that all is right, and yield their confidence 
without exercising their judgment in the premises. 

It would go hard with Mr. Astor, before, as a mere man, 
he could get his plain notes to circulate as money, to the 
amount of one-twentieth of what he is actually worth ; 
while a corporation, by dint of a public law and a good en- 
graver, can get their pictorial promises, in the shape of notes 
of the "Patriotic Copperplate Bank" to circulate to three 
times the amount of their actual capital, without much dif- 
ficulty ! 

Why is this? Because we have been reared under a false 
and artificial system of credit, to the exclusion of the true 
one. The law has been busy where it had no business ; 
has declared that to be good, which was only pretty — and 
proclaimed a promise upon fine paper to be better than one 
written upon foolscap. To all which the people cried 
" Amen !" — took high houses — filled them with splendid fur- 
niture — set up their carriages — plunged into debt — bought 
everything — sold anything — and paid for nothing. The 
plough stuck in the furrow — the shuttle ceased to move — 
the earth was partitioned " by the small " — twenty-five by 



190 HUMAN RIGHTS AND THEIR GUARANTIES. 

one hundred feet was a divine space — water rose — land 
towered above it — everything went up in value — save money 
— that was valueless. A small engraving was a large for- 
tune — a " corner lot " was a principality — and wealth was 
power. Man was nothing — his estate was everything. 
The poor we had not with us — and that portion of the 
scripture touching so disagreeable a class of men, was 
voted to be apocryphal — all — all — were rich — very rich — on 
paper. Men, stuck over with lithographed maps, were at 
large that ought to have been in prison — and others trans- 
ferred stocks, who ought to have been transferred to them ; 
the inventor of paper was deified — and the engraver was ad- 
ded to the calendar of saints ! 

The bubble burst — the false credit system of human in- 
vention exploded — burying beneath its mighty ruins the good 
and the bad — the prudent and the headlong — the rich and 
the poor. The destiny of the one had become so interwoven 
with the other, that honesty and knavery — economy and 
prodigality — sense and folly, were entombed together ! So 
will it ever be, when we infringe the laws of our organiza- 
tion, and pay greater respect to the legislature of weak and 
erring man, than to the wise and immutable laws of the 
Creator. 

At a period of great mercantile distress in this city, not 
long ago, a very distinguished president of a very distin- 
guished bank, came on here to afford the wished-for relief. 
He moved through Wall-street like a prince — and crowds 
followed in his train. A gentleman seized with a sudden 
admiration of his greatness — pointed him out to the admiring 
crowd and exclaimed — "I would rather be that man this 
day, than Autocrat of all the Russias." 

Alas ! " How are the mighty fallen !" 

When will legislators allow Nature to be heard in the 
councils of state — and, ceasing to obstruct legitimate human 
action — and to confer privileges, set about the mere protec- 
tion of human rights ? The law should be man's protection, 
not his guide. It must be silent as to the acquisition of 
wealth, save only to forbid its accumulation by means ofTen- 



OF THE RIGHT OF PROPERTY, ETC*. 191 

sive to natural morality— and when it speaks respecting it, 
it must speak for its protection only. Let human industry 
and skill seek their own legitimate course of action. Let 
them neither be fostered by bounties nor discouraged by 
frowns. Trust to man ; his resources are of divine and not 
of legal origin. He will do better for himself than the laws 
can possibly do for him. What knoweth the law of business ? 
The legislator may do " log-rolling" — but he doth not " clear 
land." If he meddle with your furnaces, will he be sure to 
keep out of the fire ? If he assume to be your patron, is it 
not the servant patronizing the master ? If he will meddle 
with the manufacturer of cloth, had he not better cut your 
coat also ? If he will bind trade by law — ought he not him- 
self to be " bound to a trade ?" When he interferes with 
lawful business, it is our business to interfere with him — but 
if he will keep the peace towards us, we will toward him, 
and thus will we endeavor to establish a treaty of friendship 
and alliance between human rights and human legislation.* 

* The following remarks of a distinguished American Statesman upon a kin- 
dred subject are very much to my purpose : " The man of all others who has the 
deepest interest in a sound currency and who suffers most by mischievous legis- 
lation in money matters, is the man who earns his daily bread by his daily toil. A 
depreciated currency, sudden changes in prices, paper money falling between 
morning and noon, and falling still lower between noon and night — these things 
constitute the very harvest time of speculators, and of the whole race of those who 
are at once idle and crafty ; and of that other race, too, the Catalines of all times, 
marked so as to be known for ever by one stroke of the historian's pen, men 

f reedy of other men's property and prodigal of their own. Capitalists, too, may out- 
ve such times. They may either prey on the earnings of labor by their cent 
per cent, or they hoard. But the laboring man, what can he hoard ? Preying on 
nobody, he becomes the prey of all. His property is in his hands. His reliance, 
his fund, his productive freehold, his all, is his labor. Whether he work on his 
own small capital, or on others' his living is still earned by his industry, and when 
the money of the country becomes depreciated and debased, whether it be adul- 
terated coin or paper without credit, that industry is robbed, of its reward. He 
then labors for a country, whose laws cheat him out of his bread. 

" The herd of hungry wolves who live on other men's earnings will rejoice in 
guch a state of things. A system which absorbs into their pockets the fruits of 
other men's industry is the very system for them. A government that produces 
or countenances uncertainty, fluctuations, violent risings and fallings in prices, 
and finally, paper money, is a government exactly after their own heart. Hence 
these men are always for change. They will never let well enough alone. A 
condition of public affairs in which property is safe, industry certain of its reward, 
and every man secure in his hard-earned gains, is no paradise for them. Give 
them just the reverse of this state of things ; bring on change, and change after 
change ; let it not be known to-day what will be the value of property to-morrow ; 
let no man be able to say whether the money in his pockets at night will be money 
or worthless rags in the morning, and depress labor till double work shall earn 
but half a living — give them this state of things, and you give them the consum- 
mation of their earthly bliss." — 2 Vol. Webster's Speeches, 311. 

This class of men flourished in the city of New York just after the failures of 



192 HUMAN RIGHTS AND THEIR GUARANTIES. 

My limits will not allow me to discuss the subject of the 
rights of property generally. I propose only to consider very 
briefly, the ownership of land in regard to what is denomina- 
ted eminent domain ; and in another place to examine that 
species of property which maybe termed intellectual, arising 
from mechanical invention, and literary and scientific labor. 

The earth being the habitation of man, and adapted by 
the Creator to the supply of his wants, may be said to be 
dedicated to his use, and is to be possessed and improved by 
him in such proportions and in such manner as his particular 
organization and external circumstances shall point out. 

We have considered the origin of the simplest idea of 
exclusive property, and shown that it emanates from an innate 
propensity to possess, associated with a selfish sentiment. 
We have seen how the intellect enlightens these " blind 
guides," and teaches man the utility of property ; and we have 
brought in the sentiments to hallow the right, and to be 
administered unto by the blessings of wealth. We are pre- 
pared, therefore, to discuss the right of property in land, in 
connection with civilized men — such as came to this country 
and took possession of a savage wilderness, inhabited only by 
beasts, and a few scattered aboriginal tribes of men, most of 
whom could not be deemed to possess the soil, or any con- 
siderable portion of it, more than the quadrupeds upon whose 
flesh they relied for subsistence. We thus place upon unoc- 
cupied soil a number of men, whose instincts and sentiments, 
under the guidance of the cultivated intellect, seek their 
natural gratification. We have not to speculate upon what 
these men would have done in what is called " a state of 
nature.'* An innate propensity and sentiment are always in 
a state of nature. Both are naturally blind feelings, as well 
in civilized as in savage man. How they shall be gratified 
or restrained depends upon the intellectual faculties, and the 
high cultivation of these faculties produces civilization ; so 
that there is no difference between civilized and savage man, 

1837. The Directory, moreover, exhibited the names of sundry men who descri- 
bed themselves as " Speculators ;" this was their pursuit. Some of these were 
professedly pio us men — but in reality belonged to that class of men whom some 
wit has detected in saying " Let us prey." 



OF THE RIGHT OF PROPERTY, ETC. 193 

in reference to the innate desire of exclusive property; and 
hence no difference exists between them, as to the abstract 
right of property. The cultivated intellect or civilization 
does not, therefore, create or suggest the right of property, 
but only increases man's power to acquire and defend it, and 
enhances the enjoyment of its possession. 

Suppose, then, any number, say one hundred, of civilized 
men, not owing allegiance to any government, to have come 
to these shores, and to have settled upon vacant and unculti- 
vated lands — what would have been done? The western world 
is all before them — but each one would appropriate to himself 
a portion of land sufficient for his purpose. Their separate 
possession would now appear to be marked and defined, and 
as each selected and bounded his intended farm, the majority 
would acquiesce in his claim. If differences arose, the 
enlightened justice of the community would settle the right. 
Presently agriculture would flourish — the arts would be culti- 
vated to some extent among them — and the right of each 
man to his well-defined landed estate would be admitted, 
established. Laws emanating from the sentiments of this 
community would be ordained for the government of the 
social body. Here, then, would be a State, to which each indi- 
vidual would stand in the relation of an equal member of it- 
]No sovereign king has granted their lands to them — with an 
implied reservation — enabling him to demand them again for 
his own or the public use. Their patent is derived from the 
Sovereign of the Universe, without condition or reservation — 
except that the thing granted should subserve the high inter- 
ests of humanity. 

Now, suppose this community, urged by some great public 
necessity, should require the lands of any one individual to 
be relinquished by him — in order that they might be appro- 
priated to the public use — what doth natural equity adjudge ? 
Why, this clearly ; that the owner ought to contribute only 
his equal proportion toward answering the public wants ; 
and as this community is composed of one hundred persons — 
whom we will suppose to have equal estates — his contribu- 
tion ought to be one hundredth part of the whole. But 

17 



194 HUMAN RIGHTS AND THEIR GUARANTIES. 

instead of this the community require him to render up the 
whole of his lands to the use of the public, since their neces- 
sity demands it. Then they must compensate and indemnify 
him for ninety-nine hundredths of the value of the estate to 
be taken from him ; by which all will contribute equally to 
the public wants. 

But can they compel him to relinquish his whole land to 
answer a public necessity, even upon awarding to him a full 
indemnity ? Can they thus outrage his sense of property ? 
May he not resist it ? 

He would resist it even unto death, if he were endowed 
only with the instinct of acquisitiveness, and self-esteem, 
with full defensive impulses. But such a being would not 
be human. 

Our man is a rational moral being. He loves and cherishes 
human society. He is just — and would do unto others, 
whether collectively or individually, as he would desire them 
to do unto him. He is benevolent, and desires the happiness 
of his brethren. He will as cheerfully relieve a public as a 
private necessity. He loves not mankind collectively less than 
man individually — and his selfish feelings are overborne by 
his superior sentiments. He is prompted to make a surren- 
der of his local attachments, and personal convenience, upon 
the altar of the public good. And while on the one hand, 
his very nature impels him to this act, the community, on 
the other, are impelled by their sense of justice, to compen- 
sate and indemnify him for the property of which their 
necessity deprives him. Hence a great public necessity can 
be relieved without offence to private right, if only a proper 
public necessity require the surrender, and enlightened public 
justice award the compensation. But let it ever be remem- 
bered it is the community — the State only — that can claim 
to divest a private citizen of his property, and that only in 
cases when the general safety or happiness is to be greatly 
subserved ; for, as between individuals, each man is naturally 
inclined to resist every encroachment upon his private pos- 
sessions, and even the State cannot present a case which 
will prompt the emotions which impel to a surrender of pri* 



OF THE RIGHT OF PROPERTY, ETC. 195 

vate property, except it make the general safety or happiness 
the exciting cause. And still the measure of public justice 
must be full. Private property is sacred to the owner for the 
preservation of his life, and the gratification of his sentiments. 
He hath a safety and necessity to provide for as well as the 
community. The State hath the means of providing for the 
safety and happiness of its members ; and when it divests an 
individual of the means embraced to answer the demands of 
his nature, it must restore him, as far as lies in its power, by 
an adequate substitute, in order that the safety and happiness 
of all may be duly cared for and protected. 

This doctrine is thus laid down by Sir William Blackstone : 

" So great is the regard of the law for private property, that it will not 
authorize the least violation of it — no, not even for the general good of 
the whole community. If a new road, for instance, were to be laid 
through the grounds of a private person, it might, perhaps, be extensive- 
ly beneficial to the public ; but the law permits no man or set of men to 
do this without the consent of the owner of the land. In vain may it be 
urged that the good of an individual ought to yield to the community ; for 
it would be dangerous to allow any private man, or even any public tri- 
bunal, to be the judge of this common good, and to decide whether it be 
expedient or no. Beside, the public good is in nothing more essentially 
interested, than in the protection of every individual's private rights, as 
modelled by the municipal law. In this and similar cases the Legislature 
alone can, and, indeed, frequently does interfere, and compel the individ- 
ual to acquiesce. But how does it interfere and compel ? not by abso- 
lutely stripping the subject of his property in an arbitrary manner, but 
by giving him a full indemnification and equivalent for the injury thereby 
sustained. The public is now considered as an individual treating with 
an individual for an exchange. All that the Legislature does is, to oblige 
the owner to alienate his possessions for a reasonable price ; and even this 
is an exertion of power which the Legislature indulges with caution, and ■ 
which nothing but the Legislature can perform." 

Chancellor Kent says: 

" It must undoubtedly rest as a general rule in the wisdom of the Legis- 
lature to determine when public uses require the assumption of private 
property; but if they should take it for a purpose not of a public nature, 
as if the Legislature should take the property of A. and give it to B., or 
if they should vacate a grant of property, or of a franchise, under the pre- 
text of some public use or service, such cases would be gross abuses of 
their discretion, and fraudulent attacks on private rights, and the law 
would clearly be unconstitutional and void." 

The Legislature, then, cannot take the private property of 
one man and give it to another, even upon an award of full 
compensation. A law doing this would be utterly void, as 



196 HUMAN RIGHTS AND THEIR GUARANTIES. 

offensive to natural reason and justice. If this cannot be 
done in the whole, it cannot be done in part — since all of- 
fence of this sort is to be avoided. It is worth while, then, 
to consider the character of those laws which authorize in- 
corporated companies to deprive private owners of their pro- 
perty, for the purpose of constructing works of internal im- 
provement. Do not these laws unwarrantably infringe upon 
private right ? In general these companies execute works of 
public convenience only ; the State always constructs her 
works of public necessity, such as fortresses, post-roads, &c, 
in the exercise of the sovereign power. My first objection 
lies to the case itself, of taking the private property of a citi- 
zen by a corporate body. Mere public convenience is not 
enough — it is not so high and sacred as the right invaded. — 
It cannot move a private owner to the sacrifice of his right. 
Take a rail-road, for instance ; it may address the organs of 
time and destructiveness, but no man's benevolence is so 
wounded at seeing people move at only a horse's speed as 
that he will surrender his garden and his lawn, his groves 
and sweet fields, to lay the track of whizzing engines, in or- 
der that his brother may get on faster. In such a case, if he 
will not volunteer in favor of a private company, the law 
ought not to compel him to part with his estate. The case 
does not command him. There is nothing great or pressing 
in the matter. A man may ride fast and be no better, and 
slow and be no worse. In this case the owners ought to be 
left free to grant or withhold their property at their option. 
This might, in a few cases, retard public improvements, but 
it would advance public justice, which is of far greater im- 
portance. 

It may be oftentimes difficult to distinguish between works 
of public necessity, and convenience ; but the strict rule is 
safest when there is danger of infringement upon private 
right. A just government will protect the rights of the mean- 
est citizen from invasion ; and especially will it not authorize 
violence to his rights ; and when the case is doubtful, it ought 
to abstain altogether. It is a fearful thing to behold the en- 
ergies of a sovereign State lent to a corporation, to assist it 



OF THE EIGHT OF PROPERTY, ETC. 197 

to wrest from a private citizen his property — to see his un- 
equal struggle — to see him fall at length beneath the very 
power that ought to protect him — and then to see him rise 
only to loath and curse that power, which, if well directed, 
he would have reverenced and blessed. 

The safety of private right, in this respect, lies in narrow- 
ing the construction of public necessity, and confining the 
right of eminent domain to cases of great urgency, when the 
safety or happiness of the community imperiously demands 
the surrender of private property. In such cases the public 
demands will be cheerfully acquiesced in by every good citi- 
zen. In these instances, when a good man would spontane- 
ously yield his right, an indifferent one can be compelled to 
make the surrender. 

But I regret to say that the reverse of all this is the estab- 
lished doctrine of the State of New- York, and of most of the 
States of the Union. And so far to the reverse is this doc- 
trine carried, that the Supreme Court of Tennessee have 
solemnly adjudged a law to be constitutional which author- 
ized a company to take the lands of a private person for the 
purpose of erecting a common grist mill thereon, at which 
all the inhabitants of the neighborhood should be entitled to 
have their grinding done in turn, and at fixed rates, although 
the whole property and profits of the mill were to belong to 
the proprietors thereof, who, by force of this law, wrested the 
property from its owner ! A high judicial officer of this State 
has hunted up this case and approved it as authority. He 
says: 

" It is true in that case each individual could not go to the mill and 
grind his own grist, but still it was the public utility of having such a 
mill, where each individual had an equal right to be served, which au- 
thorized the taking of private property for such purpose, upon payment 
of a full compensation for the same." 

This is grinding out law with a vengeance ! He lays 
great stress upon the circumstance of each man having a 
grist being served in turn as the point of public utility to be 
subserved by this sacrifice of private right. It seems to me 
that no one but an individual who, instead of being at school 

17* 



198 HUMAN RIGHTS AND THEIR GUARANTIES. 

had been used to convey grists to be ground, and who had 
been greatly oppressed and nearly heart-broken by not being 
"served in turn" could have appreciated so highly this spe- 
cies of "public utility." 



CHAPTER X. 

OF INTELLECTUAL PROPERTY. 

Property may be physical and tangible, as land and chat- 
tels ; or it may be intellectual and ideal, as the immediate 
oft spring of the intellect and sentiments, existing in thought 
or embodied in language. 

In the infancy of a State, the idea of property is limited to 
physical possessions, and the laws do not recognize those 
things as the subjects of this right which come of a higher 
civilization. The savage is contented if his canoe, his cabin 
and his scanty store of provisions are secure from depreda- 
tion — these are all that he hath, and their protection is all 
that he can require. The civilized man can ask no more 
than this — that all he hath shall be protected ; but he can 
demand so much of right. Now, as civilization advances, 
not only do the subjects of corporeal possession, the objects 
of material property, increase to infinite variety, but incor- 
poreal rights originate and are acknowledged by every civil- 
ized State. In a rude state of society, while the person and 
tangible property may be protected by the laws, the charac- 
ter and delicate moral interests are left for individual defence 
and vindication. But in a more advanced stage of society, 
the character, domestic affections, and the moral sensibilities 
of mankind, demand and receive a measure of protection 
from the State. These are incorporeal rights, existing in 
idea, and are wholly devoid of that tangibility and capacity 
of possession, which a rude conception of rights ascribes to 



OF INTELLECTUAL PROPERTY. 199 

every thing which is to be made the subject of legal pro- 
tection. Property may be incorporeal as well as other rights. 
A man may possess a train of ideas, as well as a certain 
moral identity or character. Both are the offspring of his 
mental constitution ; and if the intelligent action of a moral 
being for a series of years may give him a character, which, 
being identified by his person, the law will protect against 
slander, why may not a process of thinking produce a train 
of ideas, which may be said to be his own ? and when iden- 
tified by written or printed language, why may he not de- 
mand for them legal recognition and protection ? Is it go- 
ing too far to say that the mere activity of the intellect, un- 
accompanied by bodily exertion, may earn a property, as 
well as the mere impulses of the sentiments and affections 
may originate a right ? 

Why insist that bodily labor is the main element which 
enters into the constitution of property ? The body is the 
mere instrument of the mind ; and if the latter can consum- 
mate its work without calling the muscular system to its 
aid, who shall say that the work is not done, or that it is 
therefore of less value ? 

A train of ideas is as much the result of labor as any 
tangible thing which may be produced by a series of physi- 
cal motions. The train of ideas, then, is a product, and be- 
longs to the producer. But it may be that the law cannot 
recognize it — cannot ascribe it to its owner until he has 
given it a form and visible expression, by writing, printing 
or painting, or by embodying it in a machine — which being 
done, it so addresses the senses as that it is capable of being 
identified, and may then become the subject of legal pro- 
tection. 

It is now the product of a man's labor, having a physical 
embodiment for the purpose of identity — what more is neces- 
sary in order that it may claim a full legal recognition as 
property? It ought to be of value to mankind. This great, 
element of property, the productions of the intellect possess 
in an eminent degree. 

We have seen in the preceding cnapter that the sense of 



200 HUMAN RIGHTS AND THEIR GUARANTIES. 

property is innate in man, and that the primary office of this 
instinct is to appropriate whatever tends to the preservation 
of life. But we also observed that this instinct, modified by 
the impulses of the higher sentiments, and enlightened by 
the intellect, grasped at wealth to the end that the senti- 
ments might be gratified by its expenditure ; that the office 
of wealth is to minister to the moral wants of man — to gra- 
tify his tastes and his affections — to enlarge his sphere of 
benevolent action — to exalt and purify his moral emotions, 
and to supply all the civilizing influences which tend to the 
perfection of his nature. If a man's wealth consist of money 
and land, it is reasonable that he should take the product 
of these and devote it to the purposes I have indicated ; be- 
cause if money and land be simply possessed by him, they 
will not perform the true office of wealth — which is valua- 
ble only as it ministers to human culture and civilization. — 
Lands and money must therefore be expended — the corporeal 
must buy the incorporeal. Land must be expended for ideas 
— money must be laid out for sentiment — so that the true 
end of surplus property may be attained — so that civilization 
may follow the footsteps of wealth. 

Now while one man has devoted his time and talent to 
the accumulation of wealth, so that he might by its means 
command whatever would tend to the gratification and im- 
provement of his superior nature, and thus perfect his civili- 
zation, another man has devoted the same time and a differ- 
ent talent to scientific research — to mechanical invention — 
to painting or sculpture — to moral philosophy, history, or 
works of humor or fiction. The latter has no visible and 
tangible possessions, such as lands or money — but he has, 
nevertheless, the product of his time and labor, and precisely 
that which the product of the wealthy man's time and labor 
was designed to purchase. He has that which gives to 
wealth its value, since its true relation to these objects is, as 
the means of their purchase — and by an exchange of the tan- 
gible property for the intellectual, each party attains his pre- 
cise end — since each obtains from the other precisely what 
he wants, by an exchange of the products of their respect- 
ive labor. 



OF INTELLECTUAL PROPERTY. 201 

If a question arise as to the relative rank and dignity of 
solid and intellectual possessions, it may be seen that the 
possessor of the latter has in his estate the very end and ob- 
ject of wealth's attainment ; while the possessor of corpo- 
real wealth has only the means of gaining the desired end — 
and until he expends it for what the former has already got, 
his wealth answers no valuable purpose. 

Wealth, then, being only a means of attaining to a higher 
civilization, ranks below the end which only it can properly 
subserve ; and the man who has already reached the goal, by 
a direct road — to wit, by the cultivation of refined tastes, and 
the perfection of his intellectual and moral nature — and who, 
from an overflowing mind, is ready to assist his wealthy 
neighbor to rise to the same eminence — is as much« entitled 
to compensation for his mental labor, as the man of wealth 
was for those ' exertions which resulted in the possession of 
tangible riches. 

Both are supposed to start in poverty, and to direct their 
exertions to the same ultimate end ; both strive to gain the 
same intellectual and moral eminence ; they take different 
routes, but when they arrive at their goal, if they have all 
along respected each other's rights, it will be seen that each 
has aided the other by his time and labor, and each is enti- 
tled to compensation from the other for the aid which he has 
given him. 

Labor is the source of all property ; and it is immaterial 
whether it be labor of the body or of the mind, or of both 
combined, so that it result in a product which is beneficial 
to man, either as it respects his physical, intellectual or mo- 
ral nature. This product is to be estimated by the time 
which it consumed, the amount of labor bestowed upon it, 
and its value to the purchaser when judged of in reference 
to the proper ends of life. Time and labor are all that a 
man can bestow for any purpose ; and if, by a sacrifice of 
these, he produce that which another wants, why is not this 
product to be regarded as sacred, so that he may demand of 
another something which is held equally sacred in exchange ? 
A sense of the burthen of toil is common to all men — and 



202 HUMAN RIGHTS AND THEIR GUARANTIES. 

this assists them to appreciate the sacredness of the right of 
property. But because the great majority of mankind are 
devoted to bodily labor, while a few only spend their lives in 
intellectual pursuits, and their labors are shut out from the 
common view, while the product of their toil is intangible 
and ideal, it would seem that property in ideas is the last to 
be appreciated, and that the majority of mankind are reluc- 
tant to acknowledge a property in the productions of the in- 
tellect. 

The readiest assent to this species of property is gained for 
those ideas which are capable of mechanical embodiment. 

After a year of mental labor a man writes out a plan for a 
valuable machine, which it takes a practical mechanic the 
same length of time to construct. The former has produced 
a train of ideas, while the latter has embodied them in a 
machine. It will hardly be said in this case that the one 
has no property in his labor because it resulted only in a 
train of ideas — and that the other has an exclusive property 
in the form and structure of the materials, which only give 
expression to the ideas of the inventor. 

In this case the direct benefit of the inventor's train of 
thought is seen by the common observer, and he would allow 
him an equal property, at the least, with the mechanic. 

But if the train of ideas cannot be thus embodied and ren- 
dered physically useful, the case is more subtle and difficult 
of appreciation by the common mind. The senses are no 
longer addressed, but rather the intellect and sentiments. A 
purpose of business is not subserved, but rather a high moral 
interest. And thus, while the ideas rise in dignity and value, 
they incur the risk of piracy, because it is not perceived 
that money can be otherwise made out of them. 

It is said that " the labor of a man's body and the work of 
his hands are properly his " — and therefore whatever physi- 
cal object he creates or reduces to possession by this labor 
and work may be called his property. Why may it not be 
affirmed that the labor of a man's mind is properly his own, 
and that the creations of the mind ought to be regarded as 
sacred as the fruits of bodily labor ? The mind presides over 



OF INTELLECTUAL PROPERTY. 203 

all labor, and whether a train of ideas or of actions be the 
result, it ought to enure to the proper benefit of the producer 
according to its value, 

"The man," says Mr. George Combe, "who procures from nature or 
obtains by purchase certain raw materials and by his own labor and in- 
genuity works them up into a machine or a piece of furniture, is recog- 
nized by all civilized nations as the exclusive proprietor in perpetuity of 
the article produced. And I am at a loss to discover on what principle 
it can be maintained that an individual who from original invention or the 
current science and literature of his age composes a book, should not 
possess the exclusive right in perpetuity to this product, also of his labor 
and ingenuity." 

" The true mode," says Mr. Christian, in a note to Blackstone's Com- 
mentaries, " of ascertaining a moral right, I conceive, is to inquire whe- 
ther it is such as the reason, the cultivated reason of mankind, must neces- 
sarily assent to. No proposition seems more conformable to that criterion 
than that every one should enjoy the reward of his labor, the harvest 
where he has sown, or the fruit of the tree which he has planted. And 
if any private right ought to be preserved more sacred and inviolable than 
another, it is that where the most extensive benefit flows to mankind from 
the labor by which it is acquired. Literary property, it must be admit- 
ted, is very different in its nature from a property in substantial and cor- 
poreal objects ; and this difference has led some to deny its existence, 
as property ; but whether it is sui generis, or under whatever denomina- 
tion of rights it may more properly be classed, it seems founded upon the 
same principle of general utility to society which is the basis of all other 
moral rights and obligations. Thus considered, an author's copy -right 
ought to be considered an inviolable right, established in sound reason 
and abstract morality." 

I feel well assured that the law ought to recognize as of 
right and not as a favor, the property of authors and invent- 
ors in their works. The common law of England, anterior 
to a certain period of which I shall presently take notice, 
acknowledged to its fullest extent the right of an author to 
the exclusive property of his copy. His manuscript before 
publication was held sacred — no one could publish it without 
his consent. If he published it himself for the purpose of 
making profit, and manifestly intended to retain the exclusive 
right of publication, the law allowed no man to pirate his 
book. The Court of Chancery would restrain a publication 
without his consent, and the Courts of common law would 
award him damages for the violation of his right of proper- 
ty in his copy, after his own publication. At the distance of 
near a hundred years, the copy of Lord Clarendon's his- 
tory was adjudged to be the property of his representatives, 



204 HUMAN RIGHTS AND THEIR GUARANTIES. 

and the printing and publishing it without their consent, was 
adjudged an injury to that property, for which the publisher 
paid dear. 

There was a full recognition of the natural right of the 
author to the property of his work. It was a right founded 
in reason and the fitness of things, and had enjoyed the pro- 
tection of the English Courts long before the statute " foi 
the encouragement of learning." 

In the year 1767, the case of Millar vs. Taylor was brought 
into the King's Bench and was twice argued. The plaintiff 
in that case claiming to be the owner of the copy of a certain 
book of Poems, entitled "The Seasons, by James Thomson," 
prosecuted the defendant for an infringement of his right by 
a publication without his consent. 

The Counsel for the plaintiff contended that there was a 
property remaining in authors after the publication of their 
works, and that they only, or those who claim under them, 
have a right to multiply the copies for sale. That this right 
was a common law right which always had existed and still 
existed, independent of and not taken away by statute. — 
This was denied on the other side, and it was contended that 
the Act of Parliament of 8 Ann chap. 19, "for the encour- 
agement of learning " vested the copies of printed books in 
the authors or purchasers, during the time limited by the 
act, but that it was only during that limited time, and un- 
der the terms prescribed by the act, and as that time had ex- 
pired in the present case, it was claimed that no right what- 
ever existed. 

Mr. Justice Willes delivered an elaborate opinion of great 
ability, and came to the conclusion that there was a common 
law right of an author to his copy ; that it was not taken 
away by the act for the encouragement of learning, and that 
judgment ought to be for the plaintiff. 

Mr. Justice Aston, in the course of his opinion, said — 

" The present claim is founded upon the original right to this work as 
being the mental labor of the author, and that the effect and produce of 
the labor is his. It is a personal incorporeal property, saleable and prof- 
itable ; it has indicia certa ; for though the sentiments and doctrine may 
be called ideal, yet when the same are communicated to the sight and 



OF INTELLECTUAL PROPERTY. 205 

understanding of every man, by the medium of printing, the work he- 
comes a distinguishable subject of property, and not totally destitute of 
corporeal qualities. Now, without publication it is useless to the owner, 
because without profit; and property without use and disposal is an 
empty sound. In that state it is lost to society in point of improvement, 
as well as to the author in point of interest. Publication, therefore, is the 
necessary act and only means to render this confessed property useful to 
mankind and profitable to the owner. In this they are jointly concerned. 
Now to construe this only and necessary act to make the work useful and 
profitable to be destructive at once of the author's confessed original 
property against his express will, seems to be quite harsh and unreason 
able." 

He concluded his learned and very able opinion, thus : — 

" Upon the whole I conclude that upon every principle of reason, natu 
ral justice, morality and common law ; upon the evidence of the long re 
ceived opinion of this property, appearing in ancient proceedings and in 
law cases; upon the clear sense of the legislature, and the opinions of the 
greatest lawyers of their time, in the Court of Chancery since the statute, 
the right of an author to the copy of his works appears to be well 
founded and that the plaintiff is therefore entitled to judgment. And I 
hope the learned and industrious "will be permitted from henceforth not 
only to reap the fame but the profits of their ingenious labors without 
interruption, to the honor and advantage of themselves and their families." 

Mr. Justice Yates was of a different opinion. He thought 
that the whole claim that an author could make was on the 
public benevolence by way of encouragement, but not as an 
absolute coercive right. He said improvement in learning 
was no part of the thoughts or attention of their ancestors. 
That the invention of an author was a species of property 
unknown to the common law of England. Its usages were 
immemorial, and the views of it tend to the benefit and ad' 
vantage of the public with respect to the necessaries of life, 
and not to the improvement and graces of the mind. The 
latter, therefore, would be no part of the ancient common law 
of England. That when the genius of the nation took a 
more liberal turn, and learning had gained an establishment 
among the British people, it was then the office of the legis- 
lature to make such provision for its encouragement as to 
them should seem proper. And accordingly they had done 
so by the act of Queen Ann which Lord Hardwicke styled 
" An universal patent for authors." 

Lord Mansfield also delivered an opinion — and was entirely 
with the rights of the authors at common law : 

18 



206 HUMAN RIGHTS AND THEIR GUARANTIES. 

"From what source," he enquired, " is the common law drawn, which 
is admitted to be so clear in respect of the copy before publication ? 
From this argument. Because it is jvstthsX an author should reap the 
pecuniary profits of his own ingenuity and labor. It is just that another 
should not use his name without his consent. It is ft that he should judge 
when to publish, or whether he ever will publish. It is Jit he should not 
only choose the time but the manner of publication, how many, -what 
volume, what print. It is Jit he should choose to whose care he will 
trust the accuracy and correctness of the impression, in whose honesty 
he will confide not to foist in additions, with other reasonings of the same 
effect. I allow these reasons to be sufficient to show • It is agreeable to 
the principles of right and wrong, the fitness of things, convenience and 
policy, and therefore to the common law to protect the copy before pub- 
lication.' '• But the same reasons," said this great judge, "hold after 
the author has published. He can reap no pecuniary profit, if the next 
moment after his work comes out it may be pirated upon worse paper and 
in worse print and in a cheaper volume. The Statute of Queen Ann is 
no answer. We are considering the common law upon principles before 
and independent of the act. The author may not only be deprived of any 
profit but lose the expense he has been at. He is no more master of the use 
of his own name. He has no control of the correctness of his own work. 
He cannot prevent additions. He cannot retract errors. He cannot amend 
or cancel a faulty edition. Any one may print, pirate and perpetuate the 
imperfections, to the disgrace and against the will of the author ; may 
propagate sentiments under his name which he disapproves, repents and 
is ashamed of. He can exercise no discretion as to the manner in which 
and the persons by whom his work shall be published. For these and 
many more reasons it seems to me just and fit to protect the copy after 
publication." He concluded by giving judgment for the plaintiif. 

No one can attend to the elaborate reasoning of the three 
judges who gave opinions in favor of the natural right of 
authors to a property in their works, without conceding their 
great ability, and perceiving that their arguments were not 
answered by the sole dissenting judge. 

And had this decision been acquiesced in by the House of 
Lords, the right of the author to his copy would have been 
complete and perpetual, and in no wise dependent upon a 
legislative act. The act for the encouragement of learning, 
would have been regarded as only an affirmance of the com- 
mon law right, and as awarding further remedies than before 
existed for the protection of authors. But the right would 
have remained in perpetuity — and when the statutory reme- 
dies should have failed by lapse of time — the common law 
would still have remained the guardian of the author's rights, 
opening its fountains of redress for any aggression upon them. 
The right and its common law remedies would have been 
perpetual. 



OF INTELLECTUAL PROPERTY. 207 

But a few years after the foregoing decision, the case of 
Donaldson vs. Becket came up to the House of Lords on ap- 
peal from the Court of Chancery, and the Judges were direct- 
ed to deliver their opinions on the following points : 

1. Whether at common law an author of any book or lite- 
rary composition, had the sole right of first printing and pub- 
lishing the same for sale — and might bring an action against 
any person who printed, published and sold the same without 
his consent ? , 

Upon this question nine judges delivered opinions in the 
affirmative, and one only in the negative. 

2. If the author had such right originally, did the law take 
it away upon his printing and publishing such book or lite- 
rary composition — and might any person afterwards reprint 
and sell for his own benefit, such book and literary composi- 
tion against the will of the author ? 

Upon this question six judges delivered opinions in the 
negative, and four in the affirmative. 

3. If an action would have lain at common law in favor of 
the author for such printing and selling without his consent, 
is it taken away by the statute 8 Ann. ch. 19. — and is an 
author by the said statute precluded from every remedy 
except on the foundation of that statute and the terms and 
conditions prescribed thereby ? 

Upon this question six judges delivered their opinions in 
the affirmative, and five in the negative. Lord Mansfield 
being a Peer did not vote ; — had he done so, the judges would 
have been equally divided on this question — and that fatal 
construction of this statute which has since prevailed, to the 
annihilation of the author's common law right, might not 
have obtained. 

4. Whether the author of any literary composition and his 
assigns had the sole right of printing and publishing the same 
in perpetuity by the common law ? 

Upon this question six judges delivered their opinions in 
the affirmative, and four in the negative. 

5. Whether this right is in any way impeached, restrained 
or taken away by the statute of 8th Ann ? 



208 HUMAN EIGHTS AND THEIR GUARANTIES. 

Upon this question six judges gave their opinions that this 
right is impeached and taken away by the statute — and five 
judges gave contrary opinions, Lord Mansfield not voting — 
otherwise there would have been a tie. 

If a common law right be one that is founded in nature, 
and the reason and fitness of things, it is difficult to perceive 
by what authority an act of Parliament can take it away. 
At least in a country where the omnipotence of legislative 
power is denied — it may be questioned, whether a natural 
right can be annihilated by a Parliamentary act. 

It will be perceived that the majority of these learned 
judges were in favor of the common law rights of authors, 
as expounded by the Court of King's Bench in the leading 
case before quoted. All the judges save one held that the 
author had the sole right of publishing his manuscript ; six 
out of ten judges who gave opinions agreed that by publica- 
tion the author did not forfeit his right of property in his 
copy — but that it remained his own as before, and that by the 
common law he enjoyed this right in perpetuity ; but six 
judges against five held the opinion that the statute of Ann 
curtailed and limited the proprietary interest of the author, 
and took away his common law remedies. Thus by a majori- 
ty of one vote out of eleven, such a construction was given 
to an act of Parliament as annihilated, to a certain extent, the 
natural rights of authors. 

We have been looking at rights through a different medium 
from acts of Parliament and judicial constructions, seeking 
to find, if possible, what, by the reason of things and the 
inevitable laws of nature, are to be regarded as natural and 
inalienable rights. These are high above the control of 
legislatures and courts, and are to be declared and guaranteed 
by the fundamental laws of a State. 

In such an enquiry neither statutes nor opinions are of 
controling authority, but only right reason and the natural 
laws. Nevertheless, if opinions are to have weight on ac- 
count of the reasons which sway them, or the high intellec- 
tual character of the men by whom they are entertained, 
then the author may point with satisfaction to the opinions 



OF INTELLECTUAL PROPERTY. 209 

of Mansfield, Willes, Blackstone, Ashhurst and Aston, which 
were uniformly in favor of his rights, whether delivered ju- 
dicially in the Court of King's Bench, or as advisory to the 
House of Lords. 

By way of contrast to the reasons assigned by these able 
men in favor of the author's rights, I present the reader 
with the following, as a pretty fair specimen of antagonistic 
argument, taken from a note to PetersdorfF's Abridgment: 

"There is another point of view/' says the writer of this note, "in 
which the consequences of the claim of exclusive right of property in 
the author may be highly injurious to the public, and that is, the restraint 
it will create as connected with the natural rights of mankind in the ex- 
ercise of their trade and calling. It is every man's natural right to follow 
a lawful employment for the support of himself and his family. Printing 
and book-selling are lawful employments, and therefore every monopoly 
that would entrench upon their lawful employments is a restraint upon 
the liberty of the subject. And if the printing of any book that comes 
out may be confined to a few, and forever withheld from all the rest of 
the trade, what provision will the bulk of them be able to make for their 
respective families?" 

It is not a little remarkable that this writer is quite serious 
in this argument, which he has taken pains to state with 
logical precision. I am by no means inclined to dispute the 
main premise, to wit, that printing and book-selling are lawful 
employments ; nor do I deny that a monopoly may operate 
as a restraint upon the liberty of the subject, and yet I do 
not perceive that the rights of authors are altogether dispro- 
ven by this argument, which, varied a little as to the subject 
matter, would stand thus : 

It is the right of a man to follow a lawful employment. — 
Shoe-making is a lawful employment, and therefore any claim 
to the exclusive property in leather, that wdfcild entrench 
upon the facilities of the shoemaker, is a restraint upon the 
liberties of the subject ; and if every piece of leather which 
is tanned by its owner, can only be worked up by the few 
who may choose to purchase it, and be forever withheld from 
all other shoemakers, what provision will the bulk of them 
be able to make for the support of their families, unless they 
are permitted to pirate upon leather ? 

The Commandment which declares " thou shalt not 
18* 



210 HUMAN RIGHTS AND THEIR GUARANTIES. 

steal," operates as " a restraint upon the liberty of the sub- 
ject," as do many other righteous laws. 

It is lawful for a man to put his hand in a pocket, provi- 
ded it be his own, but the law protects other people's pock- 
ets, by creating a monopoly in that respect in favor of the 
true owner. It is lawful to navigate a ship for the purpose 
of honest commerce, but the laws of most civilized coun- 
tries discourage piracy on the high seas, however they may 
permit this offence against the rights of authors. 

After the opinions of Mansfield and his associates in refe- 
rence to the construction of the statute of Ann, were over- 
ruled in the House of Lords, it was considered that an author, 
after publication, had no legal right to his copy, except what 
the statute gave him — nor any remedy except that pointed 
out by the act. If the statute give him only a temporary 
privilege in his work, to that extent only can he claim the 
protection of the law. If it extend the privileges of author- 
ship to citizens only, a foreigner can claim no right or pro- 
tection whatever. Whereas, if the right of the author to 
his copy were regarded as a natural right, and were recognized 
by the common law, his title would exist in perpetuity, and 
all authors, irrespective of the country of their birth or resi- 
dence, could claim equal protection wherever the common 
law prevailed. No discussion would have arisen under the 
common law as to international copy-right ; the book of a 
foreigner would have been regarded at least as sacred as his 
bale of merchandise, and a piratical printer would have res- 
ponded as well to the foreigner as to his fellow citizen, for 
a violation of his copy-right. 

In this country we have delegated to the Congress of the 
United States the authority to make laws " to promote the 
progress of science and useful arts, by securing for limited 
times to authors and inventors the exclusive right to their 
respective writings and discoveries." 

In a commentary on this clause of the Constitution of the 
United States, Mr. Madison, in No. 43 of the Federalist, 
says : 

" The utility of this power will scarcely be questioned. The copy-right 



OF INTELLECTUAL PROPERTY. 211 

of authors has been solemnly adjudged in Great Britain to be a right at 
common law. The right to useful inventions seems with equal reason to 
belong to the inventors. The public good fully coincides in both cases 
with the rights of individuals. The States cannot separately make ef- 
fectual provision for either of these cases, and most of them have antici- 
pated the decision of this point by laws passed at the instance of Con- 
gress." 

In respect to the power over copy-right pertaining to the 
United States Government, it has been argued with great 
reason, that the several States of the Union having adopted 
the common law of England without the statute of Ann, had 
already recognised the natural right of the author to his 
copy ; but that the laws of the States alone were not suf- 
ficient for his protection, and therefore it was thought fit to 
confer upon the Federal Government the power of granting 
a further protection to his rights. That this grant to the 
United States oi the power over copy-right was not designed 
to abridge a natural right, but rather to afford it a greater 
security ; and that the legislation by Congress in favor of 
copy-right, is to be regarded as cumulative, or as adding the 
remedies of the statute, to those which existed at common 
law in favor of the author. 

The words of the Constitution give countenance to this 
argument. The grant is "to promote, &c. by securing to 
authors, &c, the exclusive right," &c. — instead of vesting ox 
granting a right. 

At any rate it cannot be inferred from the language of the 
Constitution that it was intended to abrogate the common 
law rights of authors. Nor has the Congress of the 
United States so interpreted this power. 

The legislation of the Federal Government provides for a 
mode of securing the author's rights, but leaves it open to 
adjudication whether the common law remedies do not 
still prevail. And I cannot better illustrate the present con- 
dition of the law on this subject than by stating the sub- 
stance of the opinions delivered in the case of Wheaton vs. 
Peters, decided a few years since in the Supreme Court of 
"the United States. 

The plaintiff claimed for a violation of his common law 



212 HUMAN RIGHTS AND THEIR GUARANTIES. 

rights as an author, by the defendant's publishing his work 
without his consent, in the State of Pennsylvania. 

The Court was divided in opinion. 

Mr. Justice McLean delivered the opinion of the majority 
of the court. He said it was clear that there was no com- 
mon law of the United States, and that therefore when a 
common law right was asserted, they must look to the State 
in which the controversy originated. Was the common law 
adopted in Pennsylvania ? In general the common law of 
England was adopted so far as it suited the condition of the 
Colonies. But the judicial decisions, the usages and cus- 
toms of the several States must determine how far the com- 
mon law had been introduced and sanctioned in each. He 
doubted whether the common law on this subject was in- 
troduced into Pennsylvania, because it was settled before the 
decision in the King's Bench in Millar vs. Taylor, and there 
was no evidence before the court of any decision in Pennsyl- 
vania on the subject. 

He also concluded that Congress, instead of legislating for 
the protection of an existing right in authors in respect to 
their copy, created a right. And judgment was given for the 
defendant. 

It is difficult to determine, from the prevailing opinion of 
the Court, what would have been their decision in case it 
had appeared that Pennsylvania had adopted the common 
law in respect to copy-right, although it is presumed that in 
that case the judgment would have been in favor of the 
plaintiff. 

Judges Thompson and Baldwin dissented. The former 
gave an opinion characterized by the high sense of justice 
and sound reasoning which ever distinguished his decisions. 
He assumed, as a proposition not to be questioned, that in 
England, prior to the statute of Ann, the right of an author 
to the benefit and profit of his work was recognized by the 
common law. That no case had been cited or had fallen un- 
der his observation at all throwing in doubt that general pro- 
position. 

Upon the abstract question, no decision contrary to that of 
Millar vs. Taylor had ever been made in England. 



OF INTELLECTUAL PROPERTY. 213 

That the great principle upon which the author's rights 
rest, is that it is the fruit or production of his own labor — 
that the labor of the faculties of the mmd may establish a 
right of property, as well as the labor of the faculties of the 
body ; and it is difficult to perceive any well-founded objec- 
tion to such a claim of right. It is based upon the soundest 
principles of justice, equity, and public policy ; and that these 
principles ought to ensure the protection of literary property 
to the same extent as property acquired by manual labor. 

He stated that the old Congress of the United States, be- 
fore the adoption of the present Constitution, adopted a reso- 
lution recommending to the several States to secure the rights 
of authors by making suitable provisions for the protection of 
their copy-rights. That the State of Massachusetts, in pass- 
ing a statute in pursuance of this resolution, adopted a pre- 
amble, which treated the right of an author as one of the nat- 
ural rights of man, and which contained this expression : 

" There being no property more peculiarly a man's own than that 
which is produced by the labor of his mind." 

The State of Connecticut, in pursuance of the same resolu- 
tion, passed a similar law, with a like acknowledgment, in 
the preamble, of the natural rights of authors. 

The State of New- York, in 1786, passed a law " to pro- 
mote literature," reciting that 

" Whereas, it is agreeable to the principles of natural equity and justice 
that every author should be secured in receiving the profits that may arise 
from the sale of his works," &c. 

Other States in like manner recognized the natural right 
of the author to a property in his copy. 

The Committee of Congress who reported the present law 
of copy-right, which was passed in 1831, acknowledged in 
their report, that from the first principles of proprietorship, 
an author has an exclusive and perpetual right, in preference 
to any other, to the fruits of his labor ; that though the na- 
ture of literary property is peculiar, it is not the less real and 
valuable ; that if labor and effort in producing what was not 
before possessed or known, will give title, then the literary 



214 HUMAN RIGHTS AND THEIR GUARANTIES. 

man has title perfect and absolute, and should have his re- 
ward. 

The object of the law of Congress, said Judge Thompson, 
and to which the attention of that body was particularly 
drawn, was the protection of property, claimed and admitted 
to be perpetual and exclusive in the author. 

He concluded that the law of Congress was merely cumu- 
lative, and that the common law remedies still existed. 

If, said he, there be a common law right, there certainly 
must be a common law remedy. The act of Congress con- 
tains nothing in terms having any reference to the common 
law right ; and if such right is considered abrogated, limited 
or modified by the acts of Congress, it must be by implica- 
tion ; and so to construe these acts is in violation of the estab- 
lished rules of construction, that where a statute gives a rem- 
edy in the affirmative, without a negative expressed or im- 
plied, for a matter which was actionable at common law, the 
party may sue at common law as well as upon the statute. 

That whatever effect the statute of Ann may have had in 
England, as to limiting or abridging the common law right, 
no such effect, upon any sound principles of interpretation, 
can grow out of our acts of Congress. That there is a wide 
difference in the phraseology of the laws. The statute of 
Ann contains negative words. It declares that the author 
shall have the sole right and liberty of printing, for the time 
contained in the statute, and no longer ; and these are the 
words upon which the advocates for the limitation of the 
common law right mainly rest ; and it was for a long time 
considered by the ablest judges in England, that even these 
strong words did not limit or abridge the common law right, 
and thr? question at this day is not considered free from doubt. 

It was with such reasoning that the unsatisfactory opinion 
of the majority of the Court was opposed by a Judge in whom 
conscience reigned supreme, and who, compared with his 
associates on the Bench, was second only to Marshall in his 
endowment of the reasoning faculties. 

The power delegated to Congress can only be exercised 
for the protection of authors and inventors for a limited pe- 



OF INTELLECTUAL PROPERTY. 215 

riod ; and perhaps the present statutes fulfil the design of the 
Constitution, so far as the period of protection is concerned. 
But these statutes afford no protection to the foreign author. 
When his copy reaches our shores, any printer may repub- 
lish it — may print any number of copies, in any form, and on 
such sort of paper as he may please, with such mutilations 
or additions as he may see fit — and without the consent of 
the author, or giving to him any remuneration whatever. — 
While a bale of goods, owned by another foreigner, and 
sent in the same vessel with the author's copy, is held sacred 
from theft, from trespass and from any depredation, and 
must be bought and paid for before it can be used by any 
who may desire to possess it. The owner, although an 
alien, may sue for his goods in our Courts — may prosecute 
a purchaser and recover their value. Execution is awarded 
to him, and he may coerce payment, by legal remedies, in 
the same manner as a natural born citizen. During the 
whole course of his proceedings he may remain abroad, and 
not even know the title of the Court wherein he obtains his 
redress. Not so the foreign author. The Act of Congress 
affords him no protection, and if he can demand any thing in 
our Courts, it must be by force of the common law ; and ac- 
cording to the case of Wheaton vs. Peters, there seems to 
be great difficulty in obtaining a remedy from that source. 

Nevertheless, the question may not be considered as 
finally settled — there may possibly be a common law reme- 
dy for authors, both foreign and domestic, in some of the 
States. Take the State of New-York for example. No 
doubt exists in that State as to the adoption of the common 
law. It has always prevailed there by express Constitution- 
al adoption, except such parts of it as are repugnant to the 
Constitution and the Statutes. 

If then an author at common law has a perfect right of 
property in perpetuity in his copy, as the ablest judges agree 
he has — and this right is founded on the justice of the case, 
the fitness and reason of things, it ought to be determined 
that, wherever the common law prevails — the author may 
follow his copy and claim protection for his rights. 



216 HUMAN RIGHTS AND THEIR GUARANTIES. 

But we are not so much concerned with the actual condi- 
tion of the law, as with what it ought to be ; and I cannot 
doubt, that the author and inventor, irrespective of the coun- 
try of their birth and residence, are entitled to be regarded 
as owning in perpetuity the products of their respective labor ; 
that this is purely a claim of right, which the enlightened 
conscience of mankind cannot fail to perceive ; and that in 
considering of it no idea of expediency can be taken into the 
account, except it be favorable to the acknowledgement of 
the right, and be resorted to for the purpose of hastening its 
legal recognition. 

To obtain such recognition for the rights of the author, it 
ought to be enough that it is manifestly just ; and that the 
prevailing construction of the law of copy-right, works a 
clear injustice ; injustice to the foreign author, since it denies 
him any protection whatever for that which has every 
element of property ; injustice to the American author, be- 
cause it denies him a perpetual copy-right, and the remedies 
of the common law, and because it subjects his works to an 
unfair competition with those pirated from foreigners. Nor 
can the present state of the law be upheld by any considera- 
tions of expediency. In the long run justice is always expe- 
dient, and a nation never can do better than to do right. 

Now literature is to a people in some respects what char- 
acter is to an individual ; it is the sum of their moral and 
intelligent action — that by which they are known and appreci- 
ated at home and abroad. Without such an embodiment of the 
national thought and feeling as the literature of a people pre- 
sents, they would scarcely have more than a physical exis- 
tence — at least in the estimation of mankind at large. And as 
the moral tone and the intellectual character of a nation are 
judged of by her literature, it is of great importance to her 
and to mankind in general that her literature should put forth 
a fair and just expression of the mind and morale of the 
nation. For this purpose her literature ought to be cherish- 
ed and protected by just laws, so as not to be overborne by 
foreign competition, and that the talent of the country may 
find inducement and reward for embarking in literarv labors. 



OF INTELLECTUAL PROPERTY. 217 

A people cannot well import their thoughts, and pirate their 
sentiments and still maintain their own literature. These 
are acts of appropriation, which restrain or deny attempts at 
production. 

If the demand for books be supplied by foreign importation, 
what inducement is there for the American author to write ? 
And yet it is necessary that he should write — if it be only to 
state the true theory and practical effect of the political in- 
stitutions of his country ; if it be but to portray the moral 
and social condition of the only people on earth, who have 
ever maintained a government on the principle of universal 
consent — expressed by universal suffrage. Democracy has 
already achieved enough to distinguish our literature. Its 
success, when it shall be properly understood by the world 
of mankind, will till the hearts of the humblest dwellers 
upon the earth with hope and joy. A true account of the 
actual workings of our institutions, while it would give our 
literature a peculiar interest, would hasten the enfran- 
chisement of the human race. Why, then, has not the great 
American experiment in free government, afforded something 
to inspire our authors with a zeal for human rights and ra- 
tional liberty ? Here it is demonstrated that man is fit to be 
his own " prophet, priest and king" — that there is no neces- 
sity for a visible monarch, the law being the true sovereign ; — 
that as man is enfranchised and confided in, he is inspired 
with ambition to be worthy of his trust, and is rendered 
what that confidence implied ; — that the ballot in the hands 
of every citizen, dispenses with the necessity for the bayonet, 
and that if mankind are permitted to govern themselves, 
little force will be required to ensure obedience to the law ; 
that religion, moreover is not an affair of State — that its 
votaries are most sincere and its manifestations most whole- 
some, where the law is silent respecting it. 

Shall our statesmen still draw on foreign authors for the- 
ories of government administered by force ? Shall we adopt 
the literature of a religion which is upheld by the arm of 
State ? and derive notions of the rights and dignity of man 
from authors who cannot speak the truth of human liberty 

19 



218 HTTMAN RIGHTS AND THEIR GUARANTIES. 

without forfeiting their own ? Shall the poets-laureate of 
kings furnish us with song? and the pampered priest of 
State, who derives his luxuries from the labors of the starv- 
ing poor, direct our thoughts to the Throne of Eternal Jus- 
tice ? 

The laws of Nations, too — a code of natural justice, which 
ought to recognize the rights of man as founded in nature 
— shall we receive these laws from the disciples of arbitrary 
government — the apologists of tyranny and oppression ? or 
shall the voice of the New World be lifted, in the family of 
nations, in the assertion and defence of the rights of hu- 
manity ? 

Democracy hath a philosophy and a moral founded on the 
immutable laws of Nature ; and yet it hath not a literature ; 
and the world knows only of what it hath endeavored — not 
what it hath accomplished. The great facts — of the full 
capacity of our race for self-government — of the harmony 
existing between liberty and rights — of universal order and 
peace in the midst of universal enfranchisement — of " a 
Church without a Bishop and a State without a King" — 
have yet to find such expression in the literature of America 
as will comport with the peculiar character of the Age of 
Democracy. 

What lacks the American author now ? His vast Coun- 
try is full of physical interest, and her natural history is yet 
to be written. And then, has she no deeds of chivalry — no 
monuments to patriotism — no heroic fame ? Oh yes ! But 
we import literature as we do merchandise — with this differ- 
ence, that we pirate the one, while we purchase the other. 
And while the Government fosters the interest of the manu- 
facturer of domestic goods, by protecting him by duties from 
foreign competition, it allows the American printer to sup- 
ply the reading public with the productions of foreign au- 
thors, without compensation to them for their copy-right, and 
at such cheap rates that American authors cannot compete 
with them. 

The American manufacturer asks that his foreign competi- 
tor be embarrassed by duties ; and he gets this boon and 



OF INTELLECTUAL PROPERTY. 219 

bounty on his own industry at the expense of the foreigner 
and his fellow citizens ; while the American author simply 
demands that justice be done to the right of property of for- 
eign authors, and in this he will gain all the protection 
which he needs. Grant the expediency of loading the pro- 
ducts of foreign labor with onerous duties, so that they may 
not compete with the fruits of domestic industry — is it not 
more fit to do justice to the foreign author, for the sake of 
justice ? And if this act of simple justice will protect the 
American author in his labor, and American mind from the 
improper productions of foreign literature, is there not some- 
thing in this idea of justice to command the respect of the 
Nation ? 

How profitable would be such an act of justice, if thero 
should flow from it a national literature, embodying the na- 
tural history of this vast continent, and portraying the results 
of universal enfranchisement, the moral incidents of demo- 
cratic progress, and the march of empire, in the New World. 



APPENDIX. 

NOTES TO THIS EDITION, BY GEORGE COMBE. 



Right to Preserve Existence. — Page 15. 
" Existence was the first gift of Omnipotence to man ; existence, accompanied 
not only by the instincts necessary to preserve it, and to perpetuate the species, 
but with a social (not merely a gregarious) disposition, which led so early to the 
formation of societies, that unless we carry our imagination back to the lirst cre- 
ated being, it is scarcely possible to imagine, and certainly impossible to trace, 
any other state than that of the social ; it is found wherever men are found, and 
must have existed as soon as the number of the species were sufficiently multi- 
plied to produce it. Man, then, being created for society, the Creator of man 
must have intended that it should be preserved ; and as he acts by general laws, 
not by special interference, (except in the cases in which religion directs to be- 
lieve,) all primitive society, as well as the individuals of which it is composed, 
must have been endowed with certain natural rights and corresponding duties, 
anterior in time, and paramount in authority, to any that may be formed by mu- 
tual consent. The first of these rights, perhaps the only one that will not admit 
of dispute, is, as well on the part of the individual as of the society, the right to 
continue the existence given by God to man, and by the nature of man to the 
social state in which he was formed to live ; and the correspondent mutual duty 
of the individual and of the society, is to defend this right ; but when the right is 
given, the means to enforce it must, in natural as well as positive law, be admitted 
to be also given. If, then, both individuals and the society have the right to pre- 
serve their several existence, and are, moreover, under the reciprocal duty to 
defend it when attacked, it follows, that if one or the other is threatened with 
destruction, which cannot be averted but by taking the life of the assailant, the 
right, nay more, the duty to take it, exists : the irresistible impulse of nature indi- 
cates the right she has conferred, and her first great law shows that life may be 
taken in self-defence. It is true the aggressor has the same right to exist ; but if 
this right were sacred while he was attempting to destroy that of another, there 
would be co-existing, two equal and conflicting rights, which is a contradiction in 
terms. The right, therefore, I speak of is proved ; but both in the individual and 
in society, it is strictly defensive ; it can only be exerted during that period when 
the danger lasts ; by which I mean, when the question is, which of the two shall 
exist, the aggressor or the party attacked, whether this be an individual or the 
society : before this crisis has arrived, or after it has passed, it is no longer Self- 
defence, and then their rights to enjoy existence would be co-existent and equal, 
but not conflicting, and for one to deprive the other of it would be of course 
unjust." — A System of Penal Law for the State of Louisiana. Prepared under the 
authority of the said State. By Edward Livingston. Introductory Report to the 
Code of Crimes and Punishments, p. 116. 



Function of Government. — Page 27. 
Mr. Hurlbut's opinions in this chapter appear to me to be sound, so far as they 
go ; but it is a question whether government may not, consistently with its proper 
function, actively promote the happiness of the people, by guiding and aiding 
them with the combined power of the community (of which it is the embodiment) 
to obey the natural laws. " The province of government," says Mr. Baily of 
Sheffield, " may be defined to be, to promote the happiness of the community 
associated under it, by such measures as cannot be undertaken by individuals or 
subordinate associations for themselves, or cannot be undertaken with equal ad- 
vantage." — (Rationale of Political Representation.) Mr. Hurlbut admits the pro- 
priety of government interference in regard to education ; and I am disposed to 
think that the principle might be usefully, if very cautiously extended farther. 



APPENDIX. 221 

I say " very cautiously ;" for nothing can be more rash than to conclude from the 
immediate and temporary benefits which may arise from the interference of 
government, that the ultimate and permanent results will be better than those 
with which private exertion and enterprise would be rewarded. Having com- 
municated this suggestion to Mr. Hurlbut, I have received from him the following 
reply : " I designed in this chapter to leave the actions of men in the social con- 
dition under the guidance and sanction of the natural laws ; each individual 
being left free to pursue such a course as he should deem to be conducive to his 
own happiness, or that of the community — being always careful not to injure the 
happiness of others. I perceive, upon a review, that some of my language may 
bear a different construction ; but the last sentence of the chapter expresses the 
principle which I designed to maintain, however it may be opposed to the theory 
and practice of existing governments. If we adopt it, I concede that all active 
measures for the public good, which do not relate to the administration of justice, 
must proceed spontaneously from individuals and voluntary associations. But 
would it follow that there would be less of beneficent action, because it is left to 
the voluntary impulses of the citizens 1 It may be that government would have 
greater resources, could better concentrate its efforts, and in some instances 
would be more successful than individuals and voluntary associations ; but it 
seems to me that it must first be shown to be disinterested, pure, and infallible, 
and perfectly acquainted with the natural laws, before it can be safely permitted 
to depart from the principle in view ; since it is because of such departure that 
mankind have been afflicted with established religions and State persecutions, 
with feudal tenures, titles of nobility, hereditary legislators, sinecures and pen- 
sions, the absurd right of primogeniture, protective tariffs, indirect taxation, 
paper money, wars for conquest and glory, enormous public debt, and profligate 
public expenditure ; a total disregard of the principle upon which man can de- 
mand respect for his rights, as founded in the constitution of his mind ; with 
artificial inequalities of condition, created and fostered by legislation, and a 
thousand other evils, which are offensive to the justice and beneficence of the 
natural laws. And these are not more attributable to the ignorance than to the 
selfishness of those who administer government ; so it has always happened, that 
between these two causes, as much ill as good has befallen the people from 
governmental activity. Now, the advocates of limited government, instead of 
attacking in detail the various measures of political expediency, which are pro- 
fessedly designed for the promotion of the general welfare, or ' the greatest good 
of the greatest number,' or assigning measures to a particular category of igno- 
rance, selfishness, or corruption, have supposed that there might exist some prin- 
ciple, which would confine the authority of the State within such limits, as that 
all offence to the rights and freedom of mankind could be avoided, without an 
unceasing strife as to measures of expediency. Perhaps it is not too much to 
hope, that such a principle may yet be found to exist in nature ; that it may yet 
be seen that the State owes its origin to, and is maintained by, one reigning senti- 
ment of the human mind ; that it has its foundation in the faculty of conscientious- 
ness ; and that hence, as between the citizens, its sole mission is to administer 
justice. If this should be found to be a true principle, then the great problem of 
man's social relations would be thus resolved : while human society and fellowship 
arise from the combined activity and imperious demand of the law of the human 
faculties, these would be left in the social state to their free and spontaneous activity, 
to the same extent as in the purest natural condition, until some offence should happen 
to the natural rights of man, upon which the law of the social body, proceeding from 
enlightened conscientiousness alone, would interfere to redress the wrong, and prevent 
its recurrence. In this view, the sense of right would be the true sovereign of the 
State, as I conceive it to be of the human mind. It may be, that under the power 
to prevent wrong, we can properly desire authority for educational establishments 
to be founded by the State, and it was for that reason that I consented to treat 
them as probably in harmony with the theory I endeavored to maintain, 
provided the governmental action should be limited to the furtherance of common 
education and the moral culture of the young." For some farther remarks on 
this subject, I refer to note, "Function of Government," page 

With respect to corporations, the Constitution of the State of New York, as 
revised by the Convention of 1846, proposes to enact that they "may be formed 
under general laws ; but shall not be created by special act, except for municipal 
purposes, and in cases where, in the judgment of the Legislature, the objects of 
the corporation cannot be attained under general laws." 



222 APPENDIX. 

Treatment of Criminals. — Page 72. 

For more ample discussions of this view of criminal legislation, see Mr. Liv- 
ingston's " Introductory Report to the Code of Crimes and Punishments," prefixed 
to his System of Penal Laic for the State of Louisiana, (where capital punishment 
has been abolished,) p. 113, et. seq., and the chapter of that code, entitled, "Of the 
treatment of Prisoners confined for Life," p. 711. A writer in the Phrenological 
Journal, vol. xv. p. 65, furnishes, in the following passage, some information 
which may be useful to those who wish to study the subject in detail : — 

" The Marquis Beccaria, of Milan, a master mind far in advance of the age in 
which he appeared, created much alarm in Europe, early in the last century, by 
denouncing cruelty to criminals, and boldly protesting against capital punish- 
ment itself. His views were violently resisted, his personal safety even was 
threatened ; yet his philosophical and philanthropic pages undoubtedly began a 
gradual improvement in criminal jurisprudence, and brought forth, slowly even 
in England, a more humane legislation, of which Howard was the pioneer, and 
Bentham and his pupil Romilfy were the prime movers. Beccaria died before 
Phrenology was discovered, and neither Bentham nor Romilly, although they 
lived to see its arrival in England, took any aid from it, or knew, it may be, that 
it had any aid to give. Yet it is more than an application of Phrenology, it is 
Phrenology itself, to observe the working of the crime-producing propensities 
when acting without control; while the questions of responsibility, guilt, restraint, 
punishment, prevention, and protection, all force themselves on the notice of the 
philosophical student of the science. Gall and Spurzheim were early led 
to deal with the principles of criminal jurisprudence. In the first volume of his 
work on the functions of the brain, DrrGall devotes a chapter to 'the application 
of his principles to man, considered as an object of correction and punishment.' 
Although there is much in that chapter characterized by the soundest views of 
criminal treatment, there is an admixture of doctrines, which the American 
translator, Dr. YVinslow Lewis, has wondered at as the dictates of Destructive- 
ness. Dr. Gall advocates capital punishment as a means of intimidating malefac- 
tors ; and, in atrocious cases, thinks it ought to be slowly and painfully inflicted. 
Later phrenologists have, we think, improved upon the suggestions by Dr. Gall 
on this subject. Dr. Caldwell published the first phrenological work, in a sepa- 
rate form, on the subject, entitled, ' New Views of Penitentiary Discipline and 
Moral Education and Reformation of Criminals.' It appeared in America ten 
years ago, and was reprinted in the seventh volume of this Journal, pages 385 and 
493. Mr. Combe had previously written on the principles of criminal legislation, 
in vol. for. p. 559 ; and the subject was resumed by him in vol. viii. p. 109. In the 
same volume, (p. 481,) Mr. Simpson contributed a paper 'On the Practical Appli- 
cation of the Principles of Phrenology to the Penitentiary System ;' and he offered 
the new views to the 7io?z-phrenological public, in two treatises — the first entitled, 
1 Hints on the necessity of a change of principles in our Legislation for the efficient 
protection of Society from Crime, and Treatment of Criminals ;' and the second, 
'Observations on the degree of knowledge yet applied to the plea of Insanity in 
Trials for Crimes, chiefly of Violence and Homicide.'* These papers appeared in 
the Edinburgh Law Journal, Nos. VIII. and VI., 1834, 1833. Separate copies 
were circulated among statesmen, judges, and medical men of eminence, and, as 
we have reason to know, made a considerable impression, which has since had 
good consequences. These treatises are also appended to the first edition of Mr. 
Simpson's volume on National Education. Mr. Combe has pursued the subject 
in the second edition of bis ' Constitution of Man,' published in 1845, and recently 
in his ' Moral Philosophy.'! Much has been done in the legislature to mitigate 
the, till lately, disgracefully sanguinary, vindictive, and most unchristian and self- 
defeating criminal code of England, in which labors of humanity, the names of 
Lennard, Campbell, Kelly, and Ewart, are honorably prominent ; the last dis- 
tinguished by the noble, though yet unsuccessful, attempt to blot out utterly the 
punishment of death from our statute-book. "J 

* " Dr. Andrew Combe had previously, in his work on Mental Derangement, 
treated of this last subject. 

f " There is an excellent and enlightened article in the Foreign Quarterly Re- 
view, (vol. xii. p. 49.) on the Humane System in Penitentiaries." 

X The labors of Bentham. Roscoe, Basil, Montague, and others, likewise deserve 
honorable mention. 



APPENDIX. 223 

The writer proceeds to give a summary of the views of Mr. B. Sampson, ex- 
pounded in his work entitled "Criminal Jurisprudence considered in relation 
to Cerebral Organization." (London : S. Highly. 2d Ed. 1843.)* One of the 
objections made to the proposed plan of treating criminals is, that by omitting 
to punish offenders, it would present nothing that would deter others from the 
commission of crime. To this Mr. Sampson replies that, on the contrary, the 
restraint, long confinement, and painful course of cure, (the last violently con- 
trasting with all the individual's criminal indulgences,) applied, although they be, 
like a surgical operation, in benevolence, and not in revenge, would operate as 
powerfully in the way of example, upon all whom example ever sways, as the 
severest punisment positively inflicted. "Let any man," says he, "contemplate 
for a moment the possibility of his being placed in a situation where all the 
long-cherished and strongest tendencies of his mind are opposed, and where 
the only feelings that he is permitted to gratify, are those, the exercise of 
which has, up to the present moment, been most distasteful to him. He may 
then form some idea of the painful nature of those moral remedies which 
have cure, and cure only, for. their object. Let the religious man contemplate 
what his sensations would be were he forcibly held in a situation where only the 
grossest impiety and blasphemy were breathed around him, and amid which he 
should be compelled to exist without the power of expostulation or resistance. 
Let the benevolent man imagine himself compelled to watch day by day in some 
inquisitoral cell the infliction of torture upon helpeless and unoffending fellow 
beings. Let the mother who has found all her delight in the presence of her 
childeren, contemplete what her feelings would be if they were withdrawn for- 
ever from her sight and knowledge. The pain which would be felt in these in- 
stances would, nevertheless, not exceed that which must be felt by those who 
are suddenly forced to abandon the gratification of long-loved vices, which arose 
from the predominance of the lower feelings, and to submit to a discipline, of 
which cleanliness, industry, justice, subordination, and a consideration for the 
feelings of others, are the prominent features. Yet in the latter case, the pain 
inflicted would only be subservient to kindness ; it would be that which had 
been decreed by heaven, and not revengefully administered by man. * * If 
we could cure the evil dipositions of men without the infliction of any pain 
whatever, it would be our duty to hail the opportunity of doing so, instead of 
looking out eagerly, as we now do, for the means of inflicting punishment, long 
before we have satisfied ourselves that the punishment will produce improve- 
menf't 



Religious Test of Witnesses. — Page 80. 

The revised " Constitution of the State of New York," 1846, contains a provi 
cion that " no person shall be rendered incompetent to be a witness on acconnt 
of his opinions on matters of religious belief." I am not aware whether this 
clause has been accepted by the Legislature. 

Mr. Livingston has discussed this subject in the following clear and conclu- 

* Mr. Simpson has published also a pamplet entitled, " The Phrenological The- 
ory of the Treatment of Criminals defended, in a letter to John Forbes, Esq., M. D., 
Editor of the British and Foreign Medical Review. London : S. Highley, 1843." 
it is from this pamphlet that the extract in p. 73 is made by Mr. Hurlbut. The 
first proposition there quoted is, I think, defective, in not recognizing ignorance 
as one of the sources of" " error of judgment or conduct," independently of " a 
defective condition of the brain." With respect to Mr. Sampson's third propo- 
sition, it may be observed, that, as fear of the disagreeable consequences of crime, 
and other such motives, increase not a little the power of withstanding the 
impulses of an ill-constituted brain, there is, to that extent, a difference between 
the brain and all other parts of the body. I would add, that, as the application 
of the word " insanity" is generally limited to cases of cerebral disease, organic 
or functional, Mr. Sampson has rendered himself liable to misapprehension in 
embracing within its meaning such irregularities of conduct as arise from mere 
disproportion among the parts of a healthy brain. 

t The subject is further discussed in the Phrenological Journal, xv. 275 ; xvi. 1 ; 
xvii 58; xviii. 101, 205; xix. 199, 227. 



224 APPENDIX. 

sive manner. In the " Introductory Report to the Code of Evidence," p. 284—6 
of his System of Penal Law for the State of Louisiania, he says : — 

" One more ground of exclusion remains to be dsscussed : that arising 
from religious opinion. The doctrine on this subject, after having gone through 
several changes, is settled, as far as any thing depending on judicial decisions 
can be settled, into this rule, that a disbelief in a future state of rewards and 
punishments is tiie only cause of religious exclusion. It is certain that this state 
of the mind destroys one of the sanctions f#r the efficacy of the oath ; but that 
is compensated by the additional weight which may reasonably be supposed 
to be given to one of the others, the moral, honorary, or penal sanction, just as 
the privation of one sense adds accuracy and sensibility to the others. The man 
who is so unfortunate as not to believe in a future state, will be conscious of 
the disadvantage attending this disbelief upon his reputation, and will endeavor 
by a more scrupulous attention to his conduct and conversation, to show 
that his want of faith does not derogate from his respectability. But, without 
having recourse to this supposition, of an increased force in the other sanctions 
from the suppression of one, ought we to believe that the man who doubts 
whether he will be punished in a future state for false testimony given in this, 
will, therefore, feel himself bound by no obligation to tell the truth ; or, to state 
the position more truly, will, on that account, be more inclined to falsehood 
than to truth ? May he not dread the reproaches of his conscience in this life ? 
May not a moral sense show him the utility and beauty of truth? May not a 
sense of honor make him disdain the idea of falsehood? May not the fear of 
infamy or of punishment deter him ? No, says the inexorable exclusionists ; we 
must have every security for the truth of the testimony, or we dare not trust 
ourselves with hearing it ; or rather, we must have this, and we will dispense 
with all the other. A man of profligate character, who laughs at all moral du- 
ties ; a dishonored and notorious liar, who has no regard for reputation ; a 
witness who resides out of the reach of the tribunals which might bring him to 
punishment for his perjury, and therfore has no fears for the consequences ; all 
these may be heard ; but the man of honor, of integrity, and the most fearful 
of the temporal consequences of an aberration from truth, cannot be heard if he 
cannot believe in the immortality of the soul — a most unfortunate state of mind, 
but certainly not one that supposes a want of veracity. Belief in a future state 
must arise either from reasoning on probabilities, or from a conviction of the 
truth of revealed religion. Some minds may be so framed as not to yield to 
the evidence which most of us think sufficient on these points ; but surely an 
inability to draw a just conclusion from abstract propositions, does not imply 
such a degradation of moral principle as would render it more probable that, 
without motive, he would prefer falsehood to truth. The religious sanction is 
the only one which, by this reasoning, will secure the truth. But yet, you will 
believe a Quaker, who rejects even the form of the oath ; yet you will, in a thou- 
sand instances, as in custom-house declarations, put no faith in the oath, which 
is unaccompanied oy the other sanctions, and because little dishonor is at- 
tached to their breach, and punishment rarely follows their violation. If the 
truth could be demonstrated, it would appear that the fear of the consequences 
in a future state is not half so operative, taken by itself, as the fear of dishonor 
and punishment here. Therefore, in itself, this disbelief does not destroy the 
credibility of the witness. On the contrary, from the mode in which alone it 
can be proved, it must add to his credit. To avow this disbelief requires some 
courage. The atheist is a character not favored in society. A repugnance to 
utter a falsehood, for the most part, would be the motive for making the 
avowal ; yet, the moment he has given this evidence of his regard to truth, he 
is declared unworthy of belief. If, being an unbeliever, he answers falsely that 
he believes, he is a good witness. If he answers truly on this point, the pre- 
sumption is, that he will answer untruly to every other question that may be put 
to him; for, remember, that whatever proof you may have to convict him of 
disbelief, it must all end in that to be derived from his own examination. What 
he may have said or written yesterday is no proof of his belief to-day. It is 
the actual state of mind at the time of examination, that must be inquired into, 
and if he believes then, he is a good witness ; and this state of mind can only be 
known from himself. 

" In itself, then, the exclusion is absurd. In its consequences it is more danger- 
ous than any we have reviewed. Not only is the unbeliever, in common with 
the witness convicted of crime, put out of the protection of the law, as to all in- 



APPENDJX. 225 

juries to his person or property that require his own evidence to punish or re- 
press ; not only in this case, as in that, is the party entitled to his evidence de- 
prived of it, when it may be necessary for the protection of his property or his 
life ; but in this case every kind of outrage may be committed, not only upon the 
person who wants the necessary faith, but in the presence of others of the same 
description. There is no more risk than if it were committed before so many 
statues. All those who, knowing the offender's guilt, might wish to avoid giving 
testimony aginst him, but are unwilling to expose themselves to the punishment 
of perjurers by false testimony, have the ready means of avoiding the examina- 
tion ; an avowal of unbelief is all that is necessary. If it be false, there can be 
no detection or punisment, for as it is a matter of unbelief only, no one can con- 
tradict this assertion. 

" There is another view in which the inquiry into religious belief, which must 
precede the exclusion, appears highly reprehensible. All kinds of religion are 
by our laws and constitution put on a perfect equality. He who believes, he who 
doubts, and he who disbelieves, have the same civil rights. Every speculation, 
as to the exsistence or non-existence of a future state, of the probality or dura- 
tion of rewards or punishments we may expect there, all the infinite modifica- 
tions from mere conjecture to perfect faith, are all so many species of religious 
tenets. No one sect has a right to say to another, mine is the true doctrine, and 
therefore I am entitled to temporal advantages of which you ought to be de- 
prived. But the right of appearing as a witness aginst one who has committed 
a crime affecting the party, is a civil and temporal right ; to deprive him of it, 
for a want of uniformity of faith in any one point with the rest of the commu- 
nity, is to deprive him of it for a difference in religious belief, which is contrary 
to the constitution and laws. 

" For these reasons, all exclusions of particular persons, as witnesses, are abol- 
ished by the code, except in the instance of persons insane, and the analogous 
one of infants whose minds are not sufficiently developed to give information 
on the suject inquired of." 

The following excellent observations appeared in the London Spectator, in 
May, 1846 :— 

h A trivial assault case at Bow street police court, the other day, raised an 
important question as to the freedom of religious opinion, with a still more im- 
portant question as to the limits of legal protection for the person of the subject. 
A newspaper reporter appeared to prefer a charge of assault againt another ; 
the complainant was just about to be sworn, when he was asked by the defend- 
ant's counsel whether he believed in the book which he held; and when he 
replied that he did not, the magistrate refused to accept either his oath or his 
testimony. Further questioning elicited a fact still more repulsive to the general 
feeling, that the complainant doubted the existence of a God — he is an ' atheist.' 
The magistrate seems to have entered upon a summary course of exhortation in 
order to convert the sceptic, but without any result, and the aggrieved party 
was dismissed with contumely. It is to be borne in mind, that he did not volun- 
teer any assertion of his opinions, but that the avowal was extorted. 

44 According to this judgment, then, a man's opinions on the subject of religion 
may subject him to such degree of civil disability as to deprive him of the pro- 
tection which the law professes to extend to all citizens. It is generally supposed 
that any offence makes the offender liable to a specific penalty ; but according to 
the Bow street dictum, there are general penalties for this particular non- 
conformity. 

" Observe, the merits of the assault case, of which both magistrate and public 
are in perfect ignorance, have nothing to do with this larger question of law. 
The question is not whether the atheist is light or wrong in the personal dispute, 
but whether he can enter a court of law and claim personal protection. The 
question concerns many more than the very small number of persons who think 
or call themselves atheists. 

44 Nor, in strict reason, can the merits of the particular creed be taken into 
account. The law cannot enter into controversy with the Queen s subject, 
cannot admit him to polemical defence of his theoretical proposition, but issues 
a broad decree on certain matters of fact. Could the law controvert opinion, the 
atheist's position is one of peculiar weakness ; he casts contempt upon your 
arguments to prove the existence of a God, because he holds them to be insuffi- 
cient ; and he himself asserts the negative of that proposition — a counter propo- 
sition manifestly impossible of logical proof. But the merits of the logical ques- 



226 APPENDIX. 

tion are excluded from the process of law, and therefore we cannot allege them 
against the recusant. 

" All for which the law is competent to regard religious sentiments in such 
cases, is the moral test which they are presumed to afford of credibility in the 
witness. It is to be noted, too, that the law cannot ascertain the belief on which 
the presumed credibility is founded ; it can only ascertain the professed con- 
formity of the person under examination. Now, conformity is no test of credi- 
bility. There are great numbers of persons who hold infidel opinions, but who 
systematically conform to the usages of some religious faith — commonly that one 
prevalent among their 'connexions.' On Shelly's trial, a counsel for the defence 
asserted that 'all the literary men in Europe are infidels,' — too sweeping a prop- 
osition, no doubt ; but it met with no sweeping denial : the judge, if we remember 
rightly, only uttered some expression of sorrow at such an assertion. We have 
reason to know, not only that conforming skeptics are to be found among the 
professed followers of the Church of England, but that even within the ranks of 
the clergy are to be found men who so refine upon doctrines which they present 
to the vulgar in the gross, that their own belief would class more aptly with the 
abstractions of Plato or of Berkeley (a bishop) than with the thirty-nine articles. 
Such persons are accepted as competent witnesses ; but obviously their system- 
atic hypocrisy is a moral disqualification, not a qualification. Indeed, belief-— an 
intimate feeling of the mind— is a thing that can by no possibility be ascertained 
against the will ; which only shows how improper a subject it is to be handled by 
the civil authority of law. 

u The question now arises, whether those who would support Mr. Jardine in 
this negative construction of the law, would put it into the form of a positive 
enactment. Political expediency may revolt at such a proposal, but in criminal 
matters the subject has a right to demand strict and definite laws, and not to be 
put to trial upon negations. Will Mr. Jardine, or his representative in Parliament, 
undertake to bring in a 'declaratory bill,' setting forth that persons holding 
certain opinions in respect of religious matters are to be excluded from the 
pale of legal protection ? And if so, what is to be the definition of those opinions 1 
If the civil laws must conform to the ecclesiastical standard — which is the prop- 
osition involved in the police decision — is not the ' deist' as worthy of exclusion 
as the atheist? The usual test of competency to take an oath is the belief in 
'a future state of rewards and punishments;' a test which would exclude most 
deists, who commonly hold such belief to be incompatible with that of unmixed 
beneficence in the Godhead, and on the same account an oath exerts no peculiar 
influence over them. They may take it as a matter of form, just as the com- 
plainant in this case would have done ; but it would not exercise any peculiar 
moral power on their conscience. Again, if deists fail in the standard as applied 
by the law of a Trinitarian government, how will Unitarians fare ? ' Where is 
the line to be drawn V 

"Nor is some 'good to society' sufficient justification of the oppression to the 
individual ; on those who inflict that oppression lies the burden of proving that 
the same good to society cannot be attained without that infliction. Now. only 
two kinds of 'good' appear to come within the question — the securing of trust- 
worthy evidence, and the encouragement of religion. The former plea we have 
already disposed of. It would ill suit the temper or understanding of the present 
day to assert that religious creed needs any sort of penal compulsion, or that 
religious feeling can be fostered by such means. The Lord Chancellor is, at this 
very time, engaged in pushing through Parliament one among a long series of 
measures, beginning with a repeal of the Test Acts, and ending in some indefinite 
future, to free religion from the odium of such corrupt and barbarous aids. 
There is no distinction, except that of degree, between compulsion of creed by 
Smithfield fires, and the telling a man that if he does not believe certain things, he 
must be outlawed. The requirement is palpably absurd ; for belief can only be 
produced by two things — the feeling of faith, and reason; and to create belief, an 
appeal. lies only to those two things. Opinion ought to be absolutely free, with- 
out reserve or qualification ; free to entertain and to discuss ; and it is a reproach 
to our country, that, on moral subjects, it is less free in England than it is in 
other countries. To deny that position, in any degree, is to assert the infallibility 
of man ; to attempt the enforcement of creed, is to do the same thing as that 
which was resented in the Holy Inquisition of the Roman Catholic Church. There 
is, in all religious classes, a disposition to erect their own popes and inquisitions ; 
and, while Mr. Jardine's questionable law remains uncorrected, there is an 
English inquisition in Bow street. 



APPENDIX. 227 

" The case furnishes a new illustration of the impolitic obstinacy with which 
onths are retained in our legal proceedings. In the law court, the oath is used 
solely for human purposes, and there can be no impiety in effecting such pur- 
poses by simply human means. On the contrary, many will hold that the absti- 
nence would prevent frequent desecration. On human grounds, the oath is not 
essentially necessary. Those persons who would be most sensible of the obliga- 
tion, are the well-disposed, and with them a feeling of civil duty would prevail so 
far as to elicit true evidence. The selfishly cautious would be influenced by the 
immediate mundane penalties for perjury, the very existence of which confesses 
the inefficacy of the oath. If some join to vicious inclinations not a true rever- 
ence, but a superstitious regard for the oath, it becomes a question of policy 
whether the hold over that class of witnesses is not purchased too dearly, by 
retaining the test at the expense of so many embarrassments. The case before 
us distinctly raises the question, whether it is better to punish religious infidelity 
by legal proscription, or to remove a needless legal form which provokes such 
ugly and profitless contests." 



Offences against Religion.— Page 80. 

"Inmost other systems of penal law," says Mr. Livingston, "the dominant 
religion is personified, and rendered by this fiction subject to be injured by investi- 
gating its truth, or doubting its divine origin. Nay, the Supreme Being himself is 
sometimes impiously substituted for the mode of worship or tenets of faith which 
prevail in the State, and his almighty power is protected by vain laws to punish 
4 offences against God and religion.'— -4 El. 43. The code offered to you does not 
contain this absurdity. The exercise of religion is considered as a right ; an in- 
estimable one. It is. restrained only by those limits which must restrict all rights, 
that they do not encroach on those of another ; or, in other words, do not change 
into wrongs. All articles of faith, all modes of worship, are equal in the eye of 
the law; all are entitled to equal protection. The fallibility of human laws doea 
not undertake a task to which unerring wisdom alone is competent. The weak- 
ness of human laws does not attempt to avenge the cause of infinite power; and 
injuries and insults to the Deity, are left to the being who asserts his right to the 
exclusive cognizance of such offences : ' Vengeance is mine ; I will repay, saith 
the Lord.' The code has not ventured to trench on this divine prerogative ; but 
' the provisions of this title will be found to repress or punish any wanton or 
intolerant attempt to disturb or persecute, while every necessary authority ia 
secured to religious societies, for the preservation of order among their members. 
So that the general principles announced in the preliminary chapter to the code, 
taken in connection with the provisions of this title, evince that this State will give 
effect to the noble experiment that has so successfully been tried in these repub- 
lics^ — of giving perfect liberty to conscience, perfect protection to all religions, 
and substituting perfect equality for insulting toleration ; an experiment which 
demonstrates how fallacious is the argument of a necessary connection between 
Church and State ; which shows that true piety may be preserved amid a variety 
of religious tenets ; and proves that liberty in religion has the same influence on 
the great virtues which all sects consider as essential to produce eternal happi- 
ness, as liberty, in government, has on those which are the basis of political pros- 
perity."— Introductory Report to the Code of Crimes and Punishments ; System of 
Penal Law for the State of Louisiana, p. 174. 



Sunday. — Page 81. 

As the expediency of resting on Sunday from labor is generally recognized, 
even by those who do not regard the day as a divinely appointed Christian Sab- 
bath, it is clear that, although every man be allowed to enjoy his natural right to 
spend the day according to his own convictions, consistently with the rights of 
others, there will be little danger of the day being employed more than it is at 
present, in secular avocations. In recent discussions in Scotland, about the pro- 
priety of shutting up the Edinburgh and Glasgow railway on Sundays, the Sab- 
batarian party has strangely overlooked the right of those who take a different 
view of the matter from theirs, to act upon that view, if they please. 



228 APPENDIX. 



Religious Education. — Page 82. 

In a letter to Mr. Hurlbut, I remarked : — "Your opinion that every school dis- 
trict should be allowed to teach what it pleases, in religion as in every thing else, 
flows naturally from your principle that government knows nothing of religion. 
But how would this work in practice ? Would it not tend to convert schools into 
seminaries of Calvinism, Catholicism, Socialism, <fcc, according to the opinions 
of the majority, and so to rear sects rilled with inveterate hostility to each other ? 
That government may legitimately and beneficially aid, and sometimes enforce, 
the active obedience of its subjects to the natural laws, and that the evils which 
nations have sustained from bad government have arisen solely from the en- 
forcement of gross violations of the natural laws, as duties or as means of happi- 
ness, is an opinion which I have hitherto been inclined to favor, and am not yet 
prepared to abandon. If we suppose a government to possess a code of really 
pure morality and religion, thoroughly adapted to man's nature and outward 
circumstances, clearly expressed and practically elucidated — would not a people 
be m a kx iter condition at the end of two centuries of teaching of this code by 
force of law, than mat in which they would be found after the same period of 
sectarian teaching, such as they would receive if left to the uncontrolled guidance 
of their clergy ! Prussia is in a better condition now, in consequence of good 
education forced by the government on the people, than she would have been in, 
people, forty years ago, been left entirely to themselves in political, edu- 
cational, and religious movements. If government be supposed in the right, is not 
the practice of right always beneficial ? Of course government may, like the peo- 
ple, mistake a wrong course for a right one ; but I should say, that its chances, in 
a democracy, of avoiding error, are fully greater than those of a school district, 
because the aggregate intelligence of the legislature will be greater. It deserves 
to be considered whether the goverment, when desirous of operating actively, in 
order to promote the public welfare, should not send the project of their law to 
pie, and take their vote on it. This would enable the combined general 
intelligence of the country to control and impel the eccentric and indolent." 

To these observations Mr. Hurlbut replies, that the experiment of giving the 
school district the exclusive control of its own affairs having never yet been made 
in the United States, we can only indulge in conjecture as to the effect of such 
self-control in converting schools into seminaries for teaching the religion of the 
majority. "I can imagine," he adds, "a district so peopled as that this result 
might ensue ; and I admit, that it is probable there might for a season be strife in 
many districts upon the subject of religious teaching: but relying upon the good 
sense of the majority of the district inhabitants, I cannot doubt that the contention 
would end in a compromise, and a final consent that religion should be taught at 
home and in the churches, and that the schools should be devoted to their legiti- 
mate objects. In the State of New York, where the school district has been 
known as one of its civil divisions for half a century, no serious difficulty ever 
occured from the introduction or omission of religious teaching in the schools, 
until the year 1843, or thereabouts, when the Catholics in the city of New York 
took offence at the use, in some of the city schools, of books which contained 
expressions prejudicial to that religious order. The agitation was helped on by 
certain patriots, with a view to making 'political capital' out of this circumstance ; 
but the excitement has passed away. And it is to be observed that, in the city at 
that time, the schools were under the direction of a society, and were conducted 
on different principles from the country schools, which are organized as district, 
and managed by trustees chosen by the inhabitants, under a general law of the 
State- In such a district I learned the various branches of common education; 
and I remember that one of my teachers required all the pupils of sufficient age, 
to study the orthodox catechism of the Presbyterian Church. I declined this task, 
and appealed to my father, who sustained me, and I was excused. In this State, 
the school districts have been regulated, or rather governed, by a code of general 
laws. It is claimed by many, that if government had simply recognized the dis- 
trict as one of the civil divisions of the State, for the promotion of common learn- 
ing — as a small educational democracy — and permitted the inhabitants to act with 
perfect freedom on the whole subject of education, its interests would have been 
better promoted. Would not such a course seem likely to achieve the same end, 
as the submission of a law framed by the legislature for the active promotion of 
education to the people for their sanction 1 — with this difference, that, in the 
former case, each district would enjoy the benefit, or labor under the disadvan- 



APPENDIX. 229 

tdge. of its peculiar mode of action — which seems to be just ; while, in the latter 
case, if the law aimed at objects above the capacity of the district, it would fail of 
being observed, and if it did not rise to the wants and intelligence of the district, 
it would only embarrass free and beneficial action. The subject is not free from 
difficulty, and I do not claim to be able to resolve it. 1 quote some remarks of 
' The Quarterly Journal and Review/ published at Cincinnati, Ohio, embraced in 
a notice of my Essays : — 'Most of our constitutions make some provision for 
general education. It is the duty of the State to provide for the good education 
of every child of the State, and the constitution ought to make it obligatory upon 
the legislature to see it • done. Mr. Hurlbut, however, thinks the whole matter 
should be left to each district. Unless the State does her duty as she ought, we 
would say also, leave the subject with the people in their primary capacity. In 
this state (Ohio) the provisions for general instruction are a farce. Vastly more 
would have been accomplished had the State let the matter entirely alone. * * 
Were the people thrown upon their own responsibility, they would discuss the 
subject of education, and better appreciate its importance ; hence they would do 
something worthy the mind they possess.' " 



Enfranchisement of the Clergy. — Page 86. 

Mr. Hurlbut' s observations on this subject seem to me unanswerable, with 
reference to the unendowed clergy of the United States ; but where a clergyman 
is endowed, his right to devote any considerable part of his time to the perform- 
ance of other business than that for which he is paid, is, to say the least, extremely 
doubtful. Where no endowment exists, the congregation may dispense with his 
services, if they find that his secular interfere too much with his clerical avoca- 
tions. The convention which revised the Constitution of the State of New York, 
in 1846, has struck out the provision of which Mr. Hurlbut complains. 



National Education. — Page 92. 

I have lately considered the extent of the right and duty of the government to 
educatethe people, in a pamphlet, entitled "Remarks on National Education, by 
George Combe." The following is an extract from pp. 2-4 of the second 
edition ■ — 

** Government springs from the social faculties. Living in the social state, 
necessarily implies that there are interests and duties common to all the mem- 
bers of the tribe. Gregarious animals place sentinels to warn the herd or flock 
of dangers, and choose leaders to guide them. Among men, the ruling power, in 
its proper form, consists merely of certain members of the associated mass, 
selected by the rest, to attend to the common interests of the whole, and to 
enforce the reciprocal duties incumbent on the individual and the community. 
General consent of the members selects the rulers, and lends them the power of 
the social body to execute their functions. History tells us, indeed, that, in many 
States, strong and energetic individuals have constituted themselves masters, and 
transmitted their powers to their descendants, irrespective of the will of the 
community; whence notions have grown up of the governing power being a 
right inherent in certain families, independently of the will of the people ; but 
these were usurpations disavowed by reason, and such claims are not now made 
1 y the rulers of any constitutional State, and certainly not by the government of 
England. 

•' in determining what are the rights of individuals, and what the powers of 
government, our best guide is still the nature of man. Man subsists necessarily 
as an individual ; he has received from his Maker certain powers of action and 
enjoyment, and been placed in a world adapted to his constitution He has a 
right, therefore, derived directly from God, (who called him into existence, and 
provided the world for his reception,) to the full enjoyment of all his powers and 
capacities, but under two restrictions ; 1st, that he shall not transgress the laws 
which divine wisdom has established in his own and in external nature for their 
regulation ; and, 2dly, that he shall not convert his individual enjoyments into 
pources of annoyance to his fellow men, who, from the necessity of his and their 
being, must live with him in society. God, in his government of the world, 
enforces the first restriction by punishing the indivinual with loss of health for 
abuse of his corporeal functions, and by misfortune and misery for neglect or 

20 



230 APPENDIX. 

abuse of his mental powers. The duty and the right of government is to enforce 
the second restriction, viz., to see that the individual, in pursuing his own happi- 
ness, does not invade that of his neighbors. 

" These premises enable us to draw certain conclusions regarding the right of 
our rulers to interfere in the education of the people. When an individual chooses 
to avail himself of the advantages of living in society, of the physical protection 
which other men's skill and courage afford, of the social pleasures which their 
intelligence and attainments present, and above all, when he claims their sym- 
pathy, support and relief in sickness and old age — which every man living in 
society, virtually does — he becomes bound to perform his duty to it in return ; and 
society acquires a right to enforce the performance of that duty, as the funda- 
mental condition on which it allows him to reap the benefit of its arrangements 
and institutions. 

'• What, then, are the duties which the individual owes to society ? His first duty 
in compensation for the advantages it confers on him is obviously to acquire 
bodily habits calculated, according to the laws of organization, which neither he 
nor society can alter, to preserve himself in health, that he may be fitted for his 
allotted sphere of action, and may avoid diffusing disease by infection around him. 
It is on this principle that society has the right to enforce the ordinary regula- 
tions of police in towns. It ordains every citizen to put forth from his dwelling 
all refuse and noxious substances, and employs men to collect and carry them 
away. This is not done in the country, because there, individuals who neglect 
this duty, injure only themselves and their domestic dependants. The same 
principle will authorize the enforcement of still higher hygienic regulations in 
towns ; and, in point of fact, the statute 9th and 10th Victoria, c. 96, recently 
passed, authorizes the magistrates of towns, on receiving a certificate, signed by 
two duly qualified medical practitioners, ' of the filthy and unwholesome condition 
of any dwelling-house, or other building,' to compel the person complained of to 
abate the nuisance within two days. But I may go farther in the same direction. 
The individual who claims the benefits afforded by an advanced and intelligent 
state of society, is bound to qualify himself, according to the endowments bestow- 
ed on him by Providence, for acting his part in that society well. In a society 
which is moral, he has no right to continue publicly immoral ; because this is not 
only offensive, but directly injurious to his fellow men; he is not entitled to 
remain ignorant and untrained ; because in that condition he is incapable of per- 
forming his due part in the grand social evolutions, the beneficial results of which 
he claims a right to share. Before he can consistently deny the right of society 
to train and educate his children, he must show his own title to make the follow- 
ing announcement, viz : 'I decline to undergo the fatigue and discipline necessary 
to render my brain active, in order to fit myself for skilful labor, and for applying 
my labor to the best advantage ; I decline to learn to read and write ; I decline to 
be instructed in, or to conform my conduct to, those conditions in the physical 
and moral world, which, by the ordination of God, are productive of prosperity 
and happiness ; and I decline to regulate my conduct by what you call the laws 
of morality and reason ; all this I decline, because I am a free and independent 
man, and because it would be irksome to me to submit to such training, instruc- 
tion, and restraint. Nevertheless, I claim the right to throw myself, with all my 
incapacity undiminished, all my ignorance unilluminated, and all my passions 
unregulated and untamed, upon the bosom of society ; I insist that its members 
who have cultivated their faculties, and reaped the natural rewards of that culti- 
vation, in the possession of morality, intelligence, and wealth, shall bear the 
burden of my incapacity, of my recklessness, and of my follies; that they shall 
minister to me when sick, and feed me, when my unskilled labor, in competition 
with their skilled labor, does not suffice to supply me with the necessaries of life ; 
and that they shall provide for my wife and children, when, through ignorance 
and vice, I sink into a premature grave.' 

" This embodies, not a rhetorical, but a literal statement of the demand which 
the untrained and uneducated laborer, who denies the right of society to insist on 
himself and his children being trained and educated, makes on his fellow men ; 
and I leave those to defend it who abet him in that denial. The man who claims 
the benefit of a poor-law, actually demands from society all that I have now 
mentioned ; and unquestionably we are entitled to say to him, — ' Before you can 
legitimately claim ignorance as the sacred birthright of yourself and your offspring, 
you must show your emancipation from the laws of God, which connect want 
with incapacity, misfortune with ignorance, misery with immorality, and disease 



APPENDIX. 231 

and premature death with habits of tilth, sloth, and intemperance.' If the man 
admits that he continues a subject of the divine government, (and unless he be 
mad he will not dispute this point,) he cannot, with any show of reason, contest 
the right of society to train and instruct him and his children to that degree 
which shall render him and them moral and intelligent agents, fit to play their 
parts in the society of which they claim to be members. 

"The question here presents itself, what hind and degree of knowledge has 
society a right to insist on its members acquiring ? The principles already stated 
will enable us to answer this question. The individual has a right to the most 
perfect freedom of thought and action in regard to every thing which does not 
directly or indirectly affect the welfare of other men. To come at once to the 
grand point of controversy on the subject of national education — society has a 
right to insist that he shall be instructed and trained in whatever is necessary to 
fit him for the discharge of his duties as a member of the community in which he 
lives ; but iri all beyond this, the individual has a right to unbounded liberty of 
self-determination, as to what he shall learn, and what he shall not learn. He has 
no right to continue filthy in his habits, because this may induce disease and infect 
his neighbors ; he has no right to continue grossly ignorant, because in this state 
of mind he is unfit to regulate his passions, to act with a rational regard to his 
own and the public welfare in the circumstances in which he is placed, and also 
to apply his natural powers in that kind of labor by which alone he can subsist 
in a society composed of intelligent and skilful men, on whom he has no right to 
throw the burden of his incapacity. But he has a perfect title to decline to study 
poetry, rhetoric, or painting, or sculpture, if these be distasteful to him ; because 
his remaining ignorant of these accomplishments cannot be productive of harm 
to his fellow citizens. In the former category — that of things which he is bound 
to learn, because his ignorance of them is injurious to society — I place a knowledge 
of moral duties ; and in the latter, I rank those religious doctrines, the foundations 
of which rest exclusively on supernatural communications." 



Control of Highways. — Page 92. 

In Britain every district manages its own highways, but at a much greater ex 
pense than that at which the work might be better done by a general board of 
control. This has been demonstrated by Mr. Pagan, in his pamphlet on "Road 
Reform," published by Blackwood and Sons, Edinburgh, in 1845, and a notice 
of which will be found in Chamber's Edinburgh Journal, No. 68 of the New 
Series. There are a turnpike and its keeper for every six or eight miles of 
road, and these absorb a large per centage of the total sums collected. In lieu 
of the present complicated machinery, Mr. Pagan proposes so to consolidate the 
existing petty and expensive road trust, that each shall embrace a whole county, 
or at least a considerable district, their constitution being at the same time ren- 
dered more popular than at the present. His method of raising funds to main- 
tain all the roads and bridges in the kingdom, to pay the interest and principal 
of the road debts, and to liquidate every necessary expense, consists in laying 
a tax of thirty shillings annually on every horse. Such a reform would, I think, 
be very judicious. In a letter received from Mr. Hurlbut, he says : " By placing 
highways under the control of the towns and counties, I designed to leave the 
inhabitants of such larsre civil divisions to manage for themselves in this respect. 
In the state of New York, for example, each county is a species of imperium in 
imperio, and to a certain extent exercises legislative powers by a board of super- 
visors composed of one member from each town. I proposed to endo w this 
county legislature with such additional powers in reference to highways, as 
would substantially give it the control and management of them. I hoped by 
this, to conform to what 1 esteemed a true principle in free government, that 
the people should, as far as possible, act for themselves ; and, if they act by 
agents, the latter should do their office as immediately as possible under the di- 
rection and observation of their principals. It is thus that we de-centralise gov- 
ernment, and give to the individual man first, and next to small communities, 
importance and independence ; thus we educate a people in public affairs, and 
endow them with self-reliance, and at length the fullest capacity for self-govern- 
ment. You perceive that the county legislature would constitute a board of con- 
trol, in respect to highways, under the suggestion I made. The supervisors are 
chosen by tax-payers, for with us all adult males are taxable for highway la- 



232 APPENDIX. 

bor ; the poor, one day's work in a year ; and those who have property, in pro- 
portion to their estate. But the tax on property is estimated in days' work, and 
is almost wholly satisfied by labor. The legislature of the State has adhered 
to this law for half a century, although whole counties, towns, and districts 
see the folly of it, and would, under a free system, make an advantageous 
change. The result every one knows from sad experience who has ever tra- 
velled our common highways. If there be worse ones any where, modern tra- 
vellers have not ventured to describe them." 



State Debts of New York. — Page 97. 

The " Constitution of the State of New York, as revised by the convention of 
1846,*' article VII., contains the following sections : — 

" Sect. 10. The State may, to meet casual deficits or failures in revenues, or for 
expenses not provided for, contract debts ; but such debts, direct and contin- 
gent, singly or in the aggregate, shall not, at any time, exceed one million of dol- 
lars; and the moneys arising from the loans creating such debts, shall be appli- 
ed to the purpose for which they were obtained, or to repay the debt so con- 
tracted, and to no other purpose whatever. 

" .Sect. 11. In addition to the above limited power to contract debts, the State 
may contract debts to repel invasion, suppress insurrection, or defend the State 
in war ; but the money arising from the contracting of such debts shall be ap- 
plied to the purpose for which it was raised, or to repay such debts, and to no 
other purpose whatever. 

•• Sect. 12. Except the debts specified in the tenth and eleventh sections of this 
art. le, no debt shall be hereafter contracted by or on behalf of this Sate, unless 
such debt shall be authorised by a law for some single work or object, to be dis- 
till, tly specified therein , and such law shall impose and provide for the collec- 
tion of a direct annual tax to pay, and sufficient to pay, the interest on such debt 
as it falls due, and also to pay and discharge the principal of such debt within 
a years from the time of the contracting thereof. 

" No such law shall take effect until it shall, at a general election, have been 
submitted to the people, and have received a majority of all the votes cast for 
and against it, at such election. 

" On the final passing of such bill in either house of the legislature, the ques- 
tion shall be tak^n by ayes and noes, to be duly entered on the journals thereof, 
and shall be : ' Shall this bill pass, and ought the same to receive the sanction of 
the people ?' 

" The legislature may at any time after the approval of such law by the people, 
if no debt shall have been contracted in pursuance thereof, repeal the same ; and 
may at any time, by law, forbid, the contracting of any further debt or liability 
under such law ; but the tax imposed by such act, in proportion to the debt and 
liability which may have been contracted in pursuance of such law, shall remain 
in force and be irrepealable, and be annually collected until the proceeds thereof 
shall have made the provision herein before specified, to pay and discharge the 
interest and principal of such debt and liability. 

"The money arising from any loan or stock creating such debt or liability, 
shall be applied to the work or object specified in the act authorising such deb! 
or liability, or for the repayment of such debt or liability, and for no other pur 
po.-e whatever." 

It is desirable that these or similar provisions should become law. 



Right of the State to take Private Property. — Page 102. 

If the author's fundamental principle, that the sole function of the State is that 
of defence, be sound, his conclusion on the above subject necessarily follows. 
But it would be impracticable, except on the assumption that all men would give 
their consent on reasonable terms. Such an assumption cannot be made, when 
we see that there are numberless irrational, nay, malevolent men, whose delight 
it is to oppose public good. Are such persons to be allowed to obstruct forever 
a road, canal, or railway, approved of by every well-constituted mind in the 
State 1 Having put this question to Mr. Hurlbut, and asked him whether he had 



APPENDIX. 233 

sufficiently considered the existence of persons with ill-conditioned brains, and 
the consequences of giving each of them an absolute veto on all public improve- 
ments requiring possession of a portion of their land, and not intended to facilitate 
the protection of rights, I have been favored with the following reply : — 

4; 1 have been led to re-consider the doctrine advanced by me on the subject of 
appropriating private property for public use, upon compensation to the owner. 
What I stated in reference to this, in chapters 5 and 9, has exposed me to pretty 
severe criticism. I agree with you, that an ' absolute veto ' ought not to be 
allowed to any individual, in a case where a right of way, or any necessary privi- 
lege for the public, *is properly demanded. Property in the soil cannot be said to 
be absolute in the private owner as against the public. Lands are held by the 
citizen, subject to be appropriated, upon compensation, to answer the true neces- 
sities of the State, one of which is the public defence. And, in the very nature 
of things, lands must be held subject to an appropriation of such portion of them 
by the public as may be necessary for common ways ; since, without an appro- 
priation of some particular portion of lands for that purpose, the whole would of 
necessity be exposed to invasion by the public, for the purposes of travel. An 
exclusive possession of land, therefore, can only be maintained by the private 
owner's conceding a portion for the public passage. Thus we found common 
highways, the public enjoying an easement in them, and that only, since the fee of 
the land still remains in the private owner. And the public do not, in this case, 
seek to establish apropertij in the way, nor to make profit of it. The road simply 
relieves the public necessity for travel. The distinction is very obvious between 
such highways and railways, whether owned by the State or private companies. 
The latter promote rather the convenience of travel ; they are constructed for 
revenue or profit, and are not common to the public to use them with their own 
vehicles, and in a free manner. Now, I adhere to the opinion that the State cannot 
embark in the construction of railways, except the work shall be deemed neces- 
sary in strict reference to the public defence ; and this leaves them, in general, 
to be constructed by private persons or associations. Here arises at once the 
objection as to compelling the private owner to surrender his estate to another 
private person — a case where all public grants have encountered difficulty, and 
which I characterized as one of 'pure tyranny ;' and so it still appears to me, but 
only in respect to the compulsion. The award of compensation greatly mitigates 
the wrong, and, it may be, leaves it rather a technical than a substantive wrong. 
And if so, it might be avoided, in name at least, by the State's first appropriating 
all lands desired for railways, and taking them to itself, upon compensation to the 
owner, and afterward leasing them to companies for the purpose of promoting 
the convenience of travel. Perhaps this is a fair mode of avoiding a merely 
technical objection, if the one we are discussing can be properly regarded as such. 
But I am not yet convinced that this compulsory authority in private companies 
is any advantage to them. For myself, I believe they can get along better, on the 
whole, by negotiation ; and although, in a few instances, they may be compelled 
to pay largely and unjustly for land, yet I believe both the companies and the 
public would be gainers by it. In general, I think they ought to procure con- 
sent from owners before obtaining a charter, and at this stage of the business 
little difficulty would be encountered. Moreover, I think that the fact of the 
company's threatening to compel a surrender by the private owner of his land, is 
in general the cause of an exorbitant claim for compensation. It is his only mode 
of resenting the tyranny of the company. But the public are deeply interested 
that the proprietors should be satisfied with the conduct of railway owners, since 
we may attribute those miserable attempts at revenge, by obstructing the rail- 
ways, and endangering the lives of passengers, to the malice of the proprietors 
of the soil, against those who have compelled them to part with their estate ; 
and for this reason, if for no other, I would have the owner's, if it were possible 
to obtain it. If he is so utterly extravagant in his terms, as to make it apparent 
to all the world that he departs from the standard of reason and morality, perhaps 
we may treat him as one incapable of giving or withholding his assent, and assume 
a sort of legal guardianship over his interests. t, 

"The subject is surely not free from embarrassment: public improvements 
have got the lead of the public jurists, who cannot clear the legal pathway as fast 
as the physical philanthropists of the day desire to lay their rails. I confess my- 
self ' a slow coach.' " 

20* 



234 APPENDIX. 

Offences against, Decency. — Page 139. 

Mr. Livingston, in his " Introductory Report to the Code of Crimea and Pun- 
ishments," (System of Penal Law for the State of Louisiana, p. 172,) says : — 

" The second chapter contains prohibitions entirely new in our law, although 
they form a very comprehensive part of the English common law, under the 
title of Offences against Decency. This is quite undefined in that law. In the 
chapter which I present, it is restricted to four cases : indecent exposure of per 
son ; insulting and indecent language to a woman ; deliberate seduction, under 
promise of marriage ; and the infamous agency of ministering to the vices of 
others. Seduction is not, I believe, punishable in England, unless preceded by a 
conspiracy ; nor in any manner whatever, by our statutes. Yet, if we consider 
the base profligacy of the act, by which the most implicit confidence is betrayed, 
and the most solemn promises are deliberately broken, not only to the utter ruin 
of the unsuspecting victim, but to the disgrace and misery of her connections, 
it is one in which the immorality of the act, and the misery it inflicts, both re- 
quire exemplary punishment. 

" Although the private excesses of the passion between the sexes cannot, with 
propriety, be made the subject of penal law, yet public opinion, in all nations, 
has marked, by its decided reprobation, him who. without being excited by his 
own passions, ministers to those of others for gain, and in that vile office fre- 
quently seduces innocence, or purchases the influence of infamous or necessi- 
tous parents to the dishonour of their child. The indication of public sentiment 
has, on this occasion, been pursued, and the act has been made penal by the code. 

" It seems right and proper that the law should lend its aid to punish all acts 
against individuals that provoke a just resentment, which will naturally vindicate 
itself if the law refuses its aid. It is for this reason that the article imposing a 
penalty on indecent and insulting expressions to a woman, has been added. It 
has been considered, by one whose authority and opinions I highly respect, as 
descending into minutiee unbefitting a penal code and as one of those offences 
to be repressed by public opinion or the fear of private chastisement, rather 
than by law. If the force of public opinion were a sufficient sanction, I should 
have proposed no other ; but it is because its insufficiency is acknowledged, and 
private resentment is proposed to aid its operation, that I propose to substitute 
the regular action of the law to the uncertain penalty of individual passion. 

" Whether adultry should be considered as an offence against public morality, 
or left to the operation of the civil laws, has been the subject of much discussion. 
As far as I am informed, it figures in the penal law of all nations, except the En- 
glish ; and some of their most celebrated lawyers have considered the omission 
as a defect. 

" Neither the immorality of the act, nor its injurious consequences on the happi- 
ness of females, and very frequently on the peace of society and the lives of its 
members, can be denied. The reason, then, why it should go unpunished, does 
not seem very clear. It is emphatically one of that nature to which I have just re- 
ferred, in which the resentment of the injured party will prompt him to take 
vengeance into his own hands, and commit a greater offence, if the laws of his 
country refuse to punish the lesser. It is the nature of man, and no legislation 
can alter it, to protect himself where the laws refuse their aid ; very frequently 
where they do not ; but where they will not give protection against injury, it is 
in vain that they attempt to punish him who supplies, by his own energy, their 
remissness. Where the law refuses to punish this offence, the injured party will 
do it for himself ; he will break the public peace, and commit the greatest of all 
crimes, and he is rarely or never punished. Assaults, duels, assassinations, poi- 
sonings, will be the consequence. They cannot be prevented ; but, perhaps, by 
giving the aid of the law to punish the offence, which they are intended to 
avenge, they will be less frequent ; and it will, by taking away the pretext for the 
atrocious acts, in a great measure insure the infliction of the punishment they 
deserve. It is for these reasons that the offence of adultery forms a chapter 
of this title. 

" Different punishments are awarded to the unfaithful wife — to the inconstant 
husband, who is so regardless of honor and decency, and public opinion, as to 
keep a concubine in the house with his wife, or to force her, by ill-treatment, to 
leave it and give place to the usurper of her rights. The reasons for this distinction 
between the offence of the husband and the wife are obvious, and founded in na- 
ture. The paramour of the wife is also punished by fine and imprisonment ; and 



APPENDIX. 235 

to avoid collusions, no prosecutions against the wife can be carried on unless the 
partner of her crime is joined in it. This regulation, too, will be some check to 
the heartless seducer, who might otherwise look with indifference on the penalty 
suffered by another for the crime of which he was the principal cause. 

" It is provided, under this head, that no prosecution for this offence shall be 
commenced but on the complaint of the injured party, and that it shall cease if 
they become reconciled before sentence." 

The penalties enacted by the code are as follows : — For indecent exposure of 
person — imprisonment during not more than six months, or fine of not more than 
1000 dollars, or both. For uttering insulting and indecent language to a woman — 
imprisonment during not less than five nor more than thirty days, or fine of not 
exceeding fifty dollars, or both. For seducing a woman of good reputation, under 
a promise of marriage, and violating the promise — a line of not less than 100 nor 
more than 1000 dollars, or imprisonment for not less than one nor more than six 
months. For the infamous agency of ministering to the vices of others — impris- 
onment during not more than three months. For adultery by the wife — the 
forfeiture of all matrimonial gains, to which she would otherwise be entitled, and 
of certain civil rights ; and her paramour " shall suffer fine not less than 100 and 
not exceeding 2000 dollars, or imprisonment not more than six months, or both." 
On the other hand, " The husband who commits adultery, by keeping a concubine 
in the house with his wife, or by forcing her by ill-treatment to abandon his house, 
and keeping his concubine in it, shall be fined not less than 100 nor more than 
2000 dollars ; and his civil right of being tutor or curator to any minor, including 
his own children, is suspended from the time of conviction, for one year, and as 
much longer as he shall live with his concubine in the same house. 



Punishment of Seduction. — Page 142. 

A distinction ought to be made between seduction committed where the female 
is prevailed upon by the arts or false promises of the male, and seduction where 
no such arts or promises have been employed. It is a grave error to assume that 
in all cases the male is the seducer. Instances are not uncommon where the 
woman is the real delinquent ; and if seduction were declared to be felony, 
punishable by imprisonment of the male, a powerful temptation would be held out 
to artful and immoral women to seduce weak men, and then hold them in 
bondage by threats of imprisonment ; and, from the nature of the transaction, it 
would often be impossible to prove which was the guilty party. The objection 
would be in some measure obviated if seduction were declared to be felony, 
implicating both parties alike ; but human frailty would rebel against this enact- 
ment as too severe. Should not a separate prison, and a separate definition of 
crime, and different mode of treatment, be established for seduction, slander, &c, 
as they are not so gross in their means of execution as assault theft, &c. ? On 
these suggestions, which I communicated to Mr. Hurlbut, he remarks : — 

"Your criticism is just. I ought to have defined and limited the offence of 
seduction, and turned this theory to a plain and practical account, by narrowing 
the application of the term to the seduction of a woman by a fraudulent promise 
of marriage. The injured party in such a case cannot be said to volunteer, for 
the consent is obtained by fraud. It is to such cases that we are mainly indebted 
for those acts of violent revenge, which are now and then reported in the news- 
papers, and are often justified by popular sentiment. I would substitute the 
formal and just procedure of the State, for the ' Code Lynch,' and its bloody 
sacrifices ; while the cases alluded to by you, I would leave, as I would fornication 
in general, to the correction of the natural laws. In reference to the abuses 
which might happen under the law proposed, it seems to me it can be pretty 
safely administered, by requiring, in addition to the testimony of the injured party, 
the same evidence from third persons, in reference to the formal courtship and 
marriage promise, as is now required in civil cases, where damages are sought 
for a breach of that promise. Mr. Edward Livingston, in his Criminal Code for 
Louisiana, thus defines this offence, — 'Whoever shall be guilty of seducing a 
woman of good reputation, under a promise of marriage, and shall violate his 
promise, shall be fined not less than one hundred, and not more than one thou- 
sand dollars, or shall be imprisoned in close custody not less than one, nor more 
than six months.' — Livingsto?i's Criminal Code, tit. 16, ch. 2, art. 342.* But this 



Decency. 



For Mr. Livingston's remarks upon this article, see Note " Offences against 
ency." 



236 APPENDIX. 

great lawyer and statesman did not seek to magnify crimes, or to inflict penalties 
for the sake of satisfying a feeling of revenge. In the preamble to his celebrated 
code, it is declared that, ' Vengeance is unknown to the law. The only object of 
punishment is to prevent the commission of offences.' You inquire, 'should not 
u separate prison, and a separate definition of crime, and a different mode of 
treatment, be established for seduction, slander, &c, as they are not so gross in 
their means of execution as assault, theft, &c. V It would seem that offences 
against the sentiments and the person require a different mode of treatment from 
offences against property, &c. I perceive that, in Mr. Livingston's admirable 
Code of Prison Discipline, some distinction is made in the treatment of prisoners, 
according to their offences ; striking examples of which are made in the cases 
of rape and murder." 



Slander and Libel. — Page 142. 

The following paragraphs are selected from the Code of Crimes and Punish- 
ments for Louisiana title xviii., ch. 1, " Of Defamation," pp. 421-5 : 

" Art. 362. Whoever shall defame another, shall be punished by fine and im- 
prisonment, or both. 

" If the defamation impute a crime, it shall be punished by fine not exceeding 
three thousand dollars, or by imprisonment not more than twelve months, or by 
both ; and the imprisonment may, for a whole or a part of the time, be in close 
custody. 

" If the defamation do not impute a chime, the punishment shall be lessened 
one fourth. 

" If the defamation be by libeL imprisonment in close custody shall always 
form a part of the punishment. 

"Art. 363. Defamation is an injury offered to the reputation of another, by an 
allegation which is either untrue, or, if true, is not made with a justifiable intent. 

"Art 364. Defamation may be made verbally or by signs, which is called slan- 
der ; or by writing or painting, which is called libel. 

" Art. 365. This offence consists in the injury offered to reputation, not in any 
probable breach of the peace, or other consequences that may result from it. 

••Art 366. There must be some injury offered in order to constitute the 
offence ; therefore, the words used or the figures represented, must convey the 
idea, either — 

" 1. That the person, to whom they refer, has been guilty of some crime. 

""2. That he has done some act or been guilty of some omission, which, 
although not a crime, is of a nature to make people in general avoid social inter- 
course with hjm, or lessen their confidence in his integrity. 

"3. That he has some moral vice, or physical or mental defect or disease, that 
would cause his society to be generally avoided : or 

" 4. That his general character is such as to produce either of the effects men- 
tioned in this article. 

"Art. 367. It is also an injury, coming within the definition, if the natural 
tendency of the words or representations used is to bring upon the person, to 
whom they refer, the hatred, ridicule, or contempt of the public ; or to deprive 
him or the benefits of social intercourse. 

" Art. 368. To make false representations, importing that the party referred to 
wants the necessary talents, or is otherwise incompetent to perform or conduct 
the office, business, profession, or trade, in which he is engaged ; or is dishonest 
ha his conduct therein ; is also an injury within this part of the definition. 

*• Art. 369. But it is not any offence to make true statements of fact, or express 
any opinion, whether such opinion be correctly formed or not, as to the qualifica- 
tions of any person for any public office, with a bona fide intent to give information 
to those who have the power of making the appointment or election to such 
office. 

"Art. 370. Nor is it an offence to make true statements of fact, or express the 
opinion which he who gives it entertains relative to the integrity or other qualifi- 
cations to perform the duties of any station, profession, or trade, when it is done 
by way of advice to those who have asked it or to those whom it was a duty, 
arising either from legal or social -connection, or from motives of humanity, to 
give such advice. 

"Art 371. Nor shall it be deemed an offence, to make or publish any criticism 
or examination of any work of literature, science, or art ; or to express any opin- 



APrENDix. 237 

ion on the qualifications, merits, or competency of the author of such work, in 
relation thereto ; although such criticism, examination, or opinion, shall be ill- 
founded and prove injurious to the party to whom it refers : provided such 
criticism or expression of opinion be not intended to cover a malicious design to 
injure the party to whom it refers. * * * 

'•Art. 333. No prosecution can be supported, for the statement of any historical 
facts, or delineations of character in any literary work, whether the party to 
whom they refer be dead or alive, provided such statements be made in the fair 
prosecution of historical or other literary disquisition, and not for the purpose of 
defamation. * * * 

"Art. 389. It is slander to repeat the contents of any libel, or the words of any 
slander, unless the defendant show that he was not actuated in doing so by any 
desire to injure the person defamed. * * * 

" Art. 393. Nothing in this chapter contained shall be so construed as to prevent 
or punish the free discussion of the proceedings of the Legislature, or any other 
branch of the government, which is secured by the constitution ; and nothing 
shall be considered as an abuse of the liberty to 6peak, write, and print on any 
subject which is referred to in the constitution, but such acts of that nature as are 
specially constituted offences by this code. * * * 

" Art. 396. In all cases of prosecution under this chapter, the court may, at its 
discretion, make it a condition that the whole or any part of the punishment 
which is awarded, may be remitted on the Offender's making apology and amends 
to the person injured in such form and manner as the court shall by its sentence 
declare ; and if the person injured shall accept of any pecuniary amends, it shall 
be a bar to any private suit for defamation, founded on the same offence. 

" Art. 397. On the trial of any prosecution for a defamation, if the jury find that 
the defendant is the author of the libel, or the speaker of the defamatory words, 
and that the matter which constitutes the libel is false in whole or in part, they 
shall specially so declare it in their verdict ; declaring the allegations of the de- 
fendant to have been unfounded, and, where the case requires it, malicious ; and 
the charge made by the defendant, the verdict and the judgment of the court, 
shall, when required by the prosecutor, be published at the expense of the 
defendant. 

"Art. 398. Whenever the defendant, in any prosecution for defamation, shall 
avow himself the author or speaker of the words alleged, and shall acknowledge 
that the charge they import is unfounded ; or that they were not intended to 
apply to the prosecutor; or, in cases where there is either ambiguity in the 
expression or uncertainty as to their application, that they were not used in the 
sense in which they were understood by him, but in another sense, stating it : in 
either of these cases, the punishment shall be confined to the payment of costs, 
and of the publication of the proceedings ; unless the defendant shall make it 
appear that the words, according to their true import, did not imply any defama- 
tion, or did not apply to the prosecutor, in which case he shall be exempt from 
any costs, but the proceedings may, in like manner, be published." 

With referer.je % these enactments, Mr. Livingston says, in his "Introductory 
Report," p. 177 :— 

" In most cases, the connection between cause and effect exists between the 
subject of this chapter (defamation) and that of a subsequent one — of Duels. 
Defamation, either real or supposed, is the cause of most of those combats which 
no laws have yet been able to suppress. If the lawgivers had originally con- 
descended to pay some attention to the passions and feelings of those for whom 
they were to legislate, these appeals to arms would never have usurped a power 
superior to the laws ; but by affording no satisfaction to the wounded feelings of 
honor, they drove individuals to avenge all wrongs of that description, denied a 
place in the code of criminal law. Insults formed a title in that of honor, which 
claimed exclusive jurisdiction of this offence. It is too late, perhaps, to eradi- 
cate ; but we may, probably, by prudent provisions, lessen the evil. With this 
view, some have been introduced into this chapter ; all of which are new in our 
criminal jurisprudence. * * * These several provisions, by extending 
the legal remedy over part of the ground now exclusively ocupied by the prin- 
ciple of honor, it is thought, may, in conjunction with the special enactments in 
the chapter of duels, have a tendency to check that absurd and fatal practice." 



238 A.PPENDIX. 

Duelling. — Page 143. 

The Penal Code of Louisiana contains enactments for the suppression of 
Duelling. CBook II., title 19, ch. 6., pp. 451-3.) Their nature may be learned 
from the following remarks by Mr. Livingston, in his "Introductory Report," 
pp. 188-192. The subject is of sufficient importance to justify so long an 
extract : — 

"This title could not conclude without a chapter in relation to duels; that 
practice which, in modern times, seems to have proved how inefficient are all 
laws when opposed to public opinion, and to what degree the fear of shame will 
prevail over that of punishment. 

"In the whole scope of criminal legislation there is no subject which presents 
greater difficulties. Severe penalties have been denounced against it in vain ; and 
it is the more difficult to be eradicated, because it prevails most where courage, 
a fear of disgrace, and a sense of personal dignity, are most perfect. 

" One cause of this disorder in society has been anticipated in that part of this 
report which treats of injuries to reputation. Where the law gives no such relief 
as ought to satisfy those who conceive themselves disgraced by imputations on 
their honor or integrity, as long as honor and integrity are necessary to happiness 
in society, human passions will endeavor to supply the deficiencies of the law. 
But the law, as it now stands, gives a partial remedy in those cases of defamation 
only, which imply a want of integrity, or impute the commission of a gross crime ; 
and we accordingly find that redress is sought by an application to the laws for 
injuries of that nature more frequently than by appeals to arms ; while the charge 
of mendacity, or of a deficiency in the courtesies of life, are more frequent causes 
of duels than imputations of serious crimes. Why is this 1 It is because the law 
gives some relief in the one case, none in the other. One part of the remedy 
provided by the code is suggested by this consideration. The other is drawn 
from the motive that leads to the offence : this is, in most cases, a desire to possess 
that degree of standing in society which raises the possessor in the esteem of his 
fellow citizens, and gives him a right to expect those distinctions and offices to 
which his talents may entitle him. 

" If, then, we can procure an adequate remedy by law for injuries to reputation, 
and make an exclusion from office and civil distinction the consequence of any 
attempt to usurp the functions of the law : if, by proper penalties, we give to those 
who reluctantly aid in encounters of this nature, a good pretext for refusing their 
co-operation, while we take away that which the law now affords them, for 
refusing to give evidence against their principals, we shall do much to lessen the 
frequency of this practice, and by giving a turn to public opinion, in time, to 
extirpate it 

" Beginning at the source of the evil, the first provision of the chapter is to make 
it punishable"to use insulting words, or to make an assault with the intent either of 
provoking a challenge, or disgracing the party if he should not give it ; and in order 
that a prosecution, for such an offence, may be made the means of producing an 
honorable satisfaction, the next article provides, that if the defendant shall make 
any denial, explanation, or acknowledgment, which, in the opinion of the court, 
ought to satisfy the honor of the prosecutor, they shall direct the same to be 
published, with their opinion, declaring it to be satisfactory, and dismiss the de- 
fendant ; and where no such acknowledgment is made before judgment, it shall, 
if given against the defendant, contain a clause that it shall be void as to all but 
costs, in case the defendant shall make such acknowledgment as shall be satisfac- 
tory to the prosecutor ; and in any prosecution under this article, if the offence 
be a charge affecting the honor or reputation of the person making the complaint, 
and the proof on the trial show such charge to be unfounded, the court 6hall 
make that declaration in the sentence, and cause it to be published at the expense 
of the defendant, and the truth of such charge shall, if the prosecutor desire it, be 
tried by the jury. 

"These provisions are entirely new. They give, what the law has hitherto 
denied, satisfaction for those species of insults which most commonly lead to 
duels, and satisfaction of a species that the most chivalrous need not blush to 
seek or to receive; and insomuch, they are calculated to prevent those fatal 
encounters, which few, if any of those who engage in them, would not avoid, if 
any other mode were provided by which they could escape disgrace. If, how- 
ever, the parties refuse this remedy for their wrongs, and give or accept a chal- 
lenge to fight a duel, although it should not take place, the penalty is imprisonment 



APPENDIX. 239 

in close custody from two to six months, and a suspension of political rights for 
four years ; if the duel take place, the penalty is increased by a longer period of 
imprisonment, and a protracted suspension of rights, both civil and political, in 
proportion to the injury resulting from such conflict ; if it result in death, the 
imprisonment is extended to four years, and all political rights, and the civil 
rights of the first and third class, are forfeited for ever. If the wound which pro- 
duces death is inflicted by treachery, it is declared to be murder by assassination. 
The treachery intended by this provision, is defined to be the breach of any rules 
made for conducting the combat, or by taking any other advantage that could 
not be supposed to have been intended to be given ; and whatever may have 
been the rules agreed upon, it is declared to be assassination, if the mortal wound 
be given after the party is disarmed or otherwise incapable of resistance ; or, if 
the party inflicting the mortal wound have obtained the power of doing it without 
risk to himself by the effect of a chance previously agreed upon. These two last 
provisions are intended to put an end to a ferocious practice sometimes resorted 
to in duels ; which it is thought may be done, as much by stigmatizing them by 
the designation of treachery and assassination, as by the severe punishment 
assigned to them, which punishment there will, in such cases, be no disposition 
in the prejudices of jurors to avoid inflicting. However imperative we may make 
the language of the law, it loses its force when it includes in the same prohibition, 
by the same name, and under the same penalty, acts different in their motives, 
circumstances, and effects. We may, in our statutes, give the name of murder to 
death occasioned by a duel ; but the world will not adopt the appellation ; and a 
combat, sanctioned by the irresistible command of public opinion, and marked by 
no circumstances of peculiar malignity, will never be considered, prosecuted, or 
punished, as an assassination. If you wish to have it punished at all, it must be 
by its own name, and a proportionate punishment, nor must that be an infamous 
one. Put what is called a fair duellist on a footing with a thief or a murderer, 
and you assure his impunity. Consign him to a temporary, close, but not 
degrading imprisonment ; take away from him all hope of political preferment ; 
and seeing that his conviction and its consequences cannot be escaped, he will 
gladly avail himself of the opportunity offered by the laws, of throwing off', with- 
out disgrace, the tyranny of custom ; for there is this peculiarity in the offence 
of which we now speak, that nine times in ten it is most reluctantly committed 
by all who are parties to it. Let the severe punishment, then, be reserved for 
treachery and ferocity ; inflict a mild penalty on duels fairly conducted ; punish 
the insults which lead to them, and you will insure the execution of the law; 
furnish a fair excuse for even the most high-minded to avoid incurring the dis- 
advantages which it creates, and do more than has been yet done to abolish this 
barbarous, unequal, and unjust mode of settling private quarrels. 

" If prosecuting officers had always used the same diligence in bringing duellists 
to justice that they have shown in the case of other offenders against the laws, 
although the accused might escape the severe penalties of the law from the lenity 
of jurors, yet the risk, inconvenience, solicitude, and expense of the trial would 
deter many, particularly those who had aided as witnesses or seconds ; but there 
seems to be a general tacit consent, on the part of the magistrates, attorneys for 
the state, and grand jurors, that there is something dishonorable in such prosecu- 
tions, and that they form an exception to the oath of office, and are not to be 
prosecuted, unless on the most direct application, and on producing the fullest 
proof. How else shall we account for the open, notorious, and flagrant breaches 
of the law so frequently taking place almost in the presence of the magistrate, the 
grand jurors, and the prosecuting officer, without any instance of prosecution ? 
To remedy this evil, the code provides, that the attorney-general and district 
attorneys shall make a declaration on oath, and also make an honorary declara- 
tion, that they consider the execution of laws against duelling as forming no 
exception to their duty of carrying the laws into effect ; and that they will, by all 
lawful means, prevent any intended duel which comes to their knowledge, and 
prosecute all offences against that part of the code. Still further to prevent this 
offence, no person elected or appointed to any office, civil or military, judicial or 
executive, shall exercise the same, unless he shall declare, on oath, that he has 
not and will not commit any of the offences described in this chapter. I was not 
unapprized when these provisions were recommended, that this expedient had 
been partially resorted to in some of the states, and that it had not been deemed 
a proper remedy. But I apprehend, that in the cases where it has appeared to 
fail, it was not fully or fairly tried ; and I have from the first authority, that in 



240 appendix. 

one state, at least, it had proved so nearly effectual as to render duels extremely 
rare, where they had formerly prevailed to a most alarming degree. In a letter 
with which I have been favored by the chief justice of the United States, he says : 
1 On the subject of duelling, some contrariety of opinion prevails. I am among 
those who think that the utmost wisdom is required, and ought to be exerted, for 
its prevention. Originating in a sense of honor, the passion from which it springs 
must be consulted, if we hope to suppress it We must array ambition against 
this false honor, as its only equal competitor in a young and ardent mind. The 
privation of political rights, which you propose, is, I think, particularly adapted to 
this offence. The efficacy, as in most other cases, depends on the certainty that 
the law will be executed. Were you to rely on public convictions alone, this 
certainty would not exist. Even where death ensues, prosecutions will not 
always be instituted. When it does not ensue, still more where the duel does not 
take place, the whole affair will generally be overlooked ; and challenges will not 
be completely restrained. The oath you require from every person appointed 
or elected to any office whatever, before he can enter upon its duties, is, I believe, 
the best, if not the only measure which human wisdom can devise. Its efficacy 
has been proved in Virginia, where a similar oath is prescribed, and has been 
rigidly exacted. The consequence is, that duelling, formerly so common, is now 
scarcely known in this state, and public opinion on the subject is very much 
changed.' This high authority, supported, as it always is, by irrefragable argu- 
ment for the doctrines stamped with its approbation, has confirmed me in the 
purpose of retaining in the code which is submitted to you, the provisions I have 
detailed. The same false sentiment of honor which leads to a breach of the laws 
in committing this offence, renders its punishment more difficult. Witnesses 
avail themselves of the principle, that they cannot be compelled to testify any 
thing that may inculpate themselves ; and, therefore, neither seconds nor sur- 
geons, nor any others who were voluntarily present, can be induced to testify ; 
so that facts notorious to the world, published in every newspaper, which must 
be known and understood in order to exonerate the parties from the foul crime 
of assassination, and which, therefore, they cannot wish to keep secret, can rarely 
be proved before a court of justice. In order to obviate this, in another part of 
the system it is provided, that those who have served as seconds in a duel, or 
witnessed one as surgeons, shall be forced to give testimony against the princi- 
pals ; and that no person, so examined, shall be himself punishable for the offence. 
This, together with the forfeiture of political and civil rights incurred by the 
second, if he be convicted, will make it extremely difficult for principals to obtain 
friends to attend them to the field ; and the dishonorable as well as dangerous 
suspicions which must attach to the survivor, in a duel without witnesses, will 
generally prove an insurmountable obstacle in such encounters. 

"The frequency of this offence in our state, the many valuabe lives which 
have been sacrificed to this false point of honor, the distress with which it has 
overwhelmed whole families, and the particular ferocity which of late years the 
practice has assumed — all justify the attention of the legislature, and call for its 
special interference ; not in the shape of severe penalties ; not by denouncing 
punishments which are never inflicted ; but by preventive remedies ; by mild 
laws, so framed as to secure their execution, and by taking away, in most cases, 
the pretext for private vengeance, which was offered by the deficiencies of 
public justice." 



Rights of Woman. — Page 166. 

Mr. Hurlbut seems to give too little weight to the fact that the female brain ia 
smaller than that of the male, and that, in the male, the sentiment of Self-esteem 
is stronger than that of Veneration, while the proportion is reversed in the female ; 
Nature herself thus indicating that, as a general rule, woman was destined to 
obey. Sensible women, if consulted, will declare that obedience to good husbands 
is no slavery, but a pleasing duty. According to my observations, where both 
husband and wife are moral, the superior intellect of the two rules. Where both 
are equal in intellect, there is a perfect equality in authority ; reason and affection 
rule both. If both are morally and intellectually deficient, there is a constant 
war. No human laws can alter these natural laws ; but I agree with Mr. Hurlbut 
that woman's person and property should be legally protected. 

To these remarks, which were made to him in a letter, he replies, that, in 
chapter vi, he has recognized the differences here mentioned, and attempted to 



APPENDIX. 241 

answer the inference which I have drawn from them. He agrees that obedience 
to good husbands is a pleasing duty, and that the superior intellect of a moral 
pair rules ; and says he did not mean to be otherwise understood. " I agree," he 
adds, " that woman may be naturally disposed to obey a superior mind, and that 
she may safely do so if that mind be highly moral, since this may amount only to 
obedience to the natural laws. But it is very different in the case where a bad 
husband undertakes to rule, and I am seeking to find the basis of a universal law. 
My objection is, that the law of the land compels obedience, in all cases, whether 
the husband be superior or inferior to the wife ; whether he be good, bad, or 
indifferent. It seems to me that the law should be silent on this subject, and 
leave the wife to the sanction of the natural laws. If, in any case, the peculiar 
organization of the woman impels to obedience, she will cheerfully obey ; and if 
the law of the land forbade her to do so, it would be unjust : and the reverse. 
I would not, in either case, call in the officer of state until she had done some 
positive act of injustice or wrong, which should be judged of, without reference 
to its being in accordance with, or contrary to, the will of her husband. The 
woman might disobey her husband, and do right ; might obey him. and still do 
wrong." There is great force in these observations. 

The late convention of 1846, for revising the constitution of the State of New 
York, struck out, by a small majority, a clause which had previously been agreed 
to by the members, securing to women their separate property. 



Corporations. — Page 186. 

Mr. Hurlbut's remarks, applied to American corporations, are equally eloquent 
and just ; because the partners are not responsible beyond the sums subscribed, 
and the management is generally reckless and unprincipled. In Scotland, every 
partner of a joint stock company is answerable to the last shilling of his private 
property for its debts ; and the management is so prudent and honest that the 
bankruptcy or gross mismanagement of our great joint stock banks, insurance 
companies, iron companies, and so forth, is a rare event. Only four or five joint 
stock banks have failed in Scotland during the present century, and they were 
very small establishments, the partners of which left the management in the 
hands of a few directors unworthy of their confidence. As man is a social being, 
fitted by nature to act in combination with his fellows, I regard joint stock com- 
panies as natural and useful, when well administered. But there should be a 
general law under which any number of persons may organize themselves into 
a corporation for any lawful purpose, with universal individual liability for the 
corporation's debts. The only privilege conceded by the law should be that of 
suing and being sued, and holding and disposing of property, by means of office- 
bearers. All regulations, as between the partners themselves, should be left to 
private contract. I do not see any objection to such a company. 

In reply to this, Mr. Hurlbut writes : — "My remarks upon corporations were 
written in 1840, just after the great moneyed disasters which marked an era in the 
moral history of my country ; and were delivered in the form of a lecture to a 
popular audience. They were printed without amendment, and are open to the 
criticism you have made. A just indignation against the moneyed and other private 
corporations of this country, which filled the public mind, was liberally shared 
by me, as this essay testifies. But my main objections to American corporations 
were, that they were created as monopolies by special charters, were regulated 
by law in such a manner (the moneyed ones at least) as to give them a false credit^ 
were endowed with too much power, and the stockholders were exempted from 
individual liability. I agree with you that there is no sound objection to associa- 
tions for lawful purposes, provided the law under which they take their existence 
shall be a general one, and properly founded, and the stockholders shall be per- 
sonally responsible. I concur, therefore, in your remarks to this effect. In the 
new constitutions of several of the States, which have just been adopted, the 
individual liability of the stockholder is made fundamental law." 

See the concluding paragraph of note "Function of Government." 



Function of Government. — Page 191. 

Mr. Hurlbut's remark, that "the law should be man's protection, not his 
guide," resolves itself into the question discussed in note " Function of Govern- 

21 



242 APPENDIX. 

ment," pages 220, 221. Suppose a good people ignorant, and a legislature really 
instructed in the natural means of attaining prosperity and happiness, would it 
be better to allow the people to err and suffer, than to guide them into the right 
path ? I acknowledge the imperfections of rulers, and their liability to err ; but 
this does not touch the abstract question, whether, if a government be right, it 
should be allowed to guide the people to good ? 

"Surely," answers Mr. Hurlbut, "if the thing suggested were practicable, 
although to 'err and to suffer' seems to be the law of nature; yet T would rejoice 
to see mankind escape both the cause and effect, and even the effect without the 
cause. In a free representative government, (which I suppose is a government 
in harmony with the natural laws,) the legislature is deemed to enact the senti- 
ment of the community at large. A law not in accordance with that sentiment 
is a dead letter ; there is nobody to enforce it ; and if it should fall out that the 
legislature should be instructed in the natural laws, while the people should be 
ignorant, (the reverse of which is said to be nearest the truth in this country,) 
the latter would have to grow up to the intelligence of the legislature before the 
enactment would be effectual, and at this stage they would not need legislative 
guidance. This view is in a measure asserted in the preamble to Mr. Livingston's 
Penal Code, in these words : — ' The law should never command more than it can 
enforce. Therefore, whenever, from public opinion, or any other cause, a penal 
law cannot be carried into execution, it should be repealed.' The death penalty 
is becoming a marked example of the wisdom of this maxim. It would seem 
that we must revoke this penalty, or public sentiment will not much longer allow 
of a conviction for murder. The theory for which I contend leaves the citizen in 
all things, except an offence against another's right, to the rewards and penal- 
ties of the natural laws. They, and not the State, furnish him direction and 
guidance. If government were perfectly disinterested, enlightened, and pure, 
and could wield omnipotent power, it might very properly direct the people. 
We cannot expect such a government to proceed from man ; and if we demand 
it, it is found only in Nature — in her fixed and immutable laws. But the moment 
we invoke uninspired human agency in government, my notion is, that the more 
narrowly we limit it, the safer we are. I am driven, therefore, to choose between 
two great, and the only pure, theories of government — theocracy and democracy. 
In the former, mankind would receive express guidance and direction from a 
perfect law-giver ; while, in the latter, they may expect simply the protection of 
their rights. The moment the Infinite Lawgiver is withdrawn from the personal 
government of the State, men assume an equality as to each other, all observing 
(and each according to his particular intelligence) the moral and physical laws 
of the universe, and asking only, from the social body, a guarantee for their nat- 
ural rights and liberties. This is democracy as I understand it, but it has never 
yet been practiced upon. It rests upon an equality of rights, and their foundation 
in nature, and preserves them by asserting man's independence of the State, except 
for their protection. It seems to me not to be all a dream." 

There is much truth in these observations ; but, under more arbitrary govern- 
ments, (such as that of Prussia, or France under Napoleon,) may not much good 
be sometimes done by rulers superior in knowledge and sagacity to the generality 
of the subjects ? 



Taking of Private Property by Corporations. — Page 197. 

Mr. Hurbut's objection to allow a corporate body to take a man's property for 
the purpose of making a railway or canal, on full compensation, involves the 
principles already discussed in note " Right of the State to take Private Proper- 
ty," page 232. If the object of the corporation be one that saves time and 
expense to a multitude of citizens, it will set free certain hours and dollars, 
which may be employed in cultivating the mental faculties and enjoying exist- 
ence. All improvements that save time and labor, tend directly to the ameliora- 
tion of man's rational nature ; because it is only after all his animal wants are 
supplied, that he becomes capable of properly exercising his higher powers. 
Every corporate body, therefore, which promotes this end in a manner which no 
individual could accomplish, really serves the community ; and I think every well 
constituted person would see this so clearly, that a surrender of property, for 
compensation, would in general be voluntarily made, and only ill-constituted 
minds would need to be forced ; and it does not seem that justice demands that 
their anti-social idiosyncrasies should be protected to the extent that Mr. Hurlbut 



APPENDIX. 243 

proposes in the text. He has, however, modified his views, as may be seen in 
note "Right of the State to take Private Property," page 232. 

Copyright and Patents. — Page 216. 

I not only heartily concur with Mr. Hurlbut in maintaining the existence of an 
exclusive and permanent right of property in authors, but am further of opinion 
that the public have no reason for apprehending that unless it were limited, 
authors, or their representatives, might capriciously withdraw valuable books 
from circulation, and thereby retard the progress of society in virtue and 
civilization. 

It is a very ancient, and a very sound maxim, that " nunquam aliud natura, 
aliud sapientia dicit ;" in other words, nature is so constituted that it is never 
necessary to rob an individual of his just rights, in order to promote the real 
advantage of society. The rights of the one, and the interests of the other, are 
in all cases compatible ; because the same great Being who laid the foundations 
of society in the nature of man, also conferred on the individual his rights ; and 
He is too wise and powerful to have rendered the two conflicting. A few 
elucidations will, I hope, show that the case of copyright forms no exception to 
this general rule. 

Books may consist, 1st, Of new ideas never before published to the world ; 
2dly, Of the science and literature of past and present ages, mixed up with the 
author's own observations and reflections ; or, 3dly, Of the expressions of fancies, 
emotions, and passions, common to the human race, but invested with a peculiar 
charm by the author from the manner in which he embodies them. Newton's 
Principia, Harvey's work on the Circulation of the Blood, and Sir Charles Bell's 
Dissertations on the Functions of the Spinal Nerves, all of which communicated 
discoveries may be selected as specimens of the first class ; Dr. Neil Arnott's 
Elements of Physics, of the second ; and Campbell's Pleasures of Hope, of the 
third. I ask, then, what does a perpetual copyright in such works imply ? Not 
an exclusive proprietorship in the ideas and refections, in the fancies, passions, or 
emotions embodied in them ; but simply in the author's peculiar mode of expressing 
them — in that combination of words which he employs in order to convey them to 
the world. The ideas themselves, with all their consequences and applications, 
are left free as air to the public, although the copyright of the work in which they 
are embodied be preserved inviolate to the author and his heirs. In our own 
day, Sir Charles Bell's discovery of the nerves of motion and feeling is transferred 
to every systematic work on physiology in Europe and America, although the 
copyright of the special essays in which he announced it still belongs to his 
representatives. 

In regard to this class of works, then, there is no reason for maintaining that 
the public interests require that the discoverer's copyright should be limited. 

In regard to the second class of books, I trust that I do no injustice to Dr. 
Arnott in saying, that all the principles of science which enter into his treatise, 
pre-existed in the works of his predecessors ; and the peculiar merit of his com- 
position consists in the clear arrangement and admirable perspicuity of his 
propositions. If a perpetual copyright were granted to Dr. Arnott, it is clear that 
the whole principles, or, in other words, the entire raw material of the work, 
would be left as free to the public as they were before he wrote. The only thing 
of which it would then be in his power to deprive them, would be the advantage of 
that curiosa felicitas dicendi, in which his peculiar merit consists. But the talents 
which produced these results, were conferred on him, as an individual, by the 
Creator, when he gave him a peculiar conformation of brain, and a temperament 
characterized by fineness and activity ; and it is difficult to discover on what 
principles of justice society can consistently deprive him of the advantages of that 
gift, or limit his enjoyment of it, while they respect the right of property in 
perpetuity in tables and chairs, made by the hands of far less talented and less 
accomplished men. 

It is argued, however, that were the law to recognize a perpetual copyright in 
this work, Dr. Arnott, or his heirs, might capriciously deprive the public of the 
instruction which it contains. In so far as regards the author himself, Nature has 
given a pretty effective guarantee against such an unreasonable course of conduct ; 
because a brain in which the organs of Benevolence, Conscientiousness, Love of 
Approbation, and Reflection, were so deficient as to render the individual capa- 
ble of acting in such a manner could not compose such a work. It is an extreme 



244 APPENDIX. 

supposition that his heirs, or his assigns, might be so infatuated — it is supposing 
them to be insane, and, nevertheless, at large ; but as such an occurrence might 
happen, I shall, for the present, assume that it actually does present itself, and 
inquire into the means which Nature has provided for the protection of the public 
interests in such an emergency. They are simple. 

The ideas contained in the work are public property ; and all that is wanted 
is a re-expression of them in such a form as may supply the void occasioned by 
the withdrawal of Dr. Arnott's treatise. The power of composition depends upon 
temperament and cerebral development, and nature has not confined these gifts 
to Dr. Arnott. She has ushered into the world other brains and temperaments, 
capable of running the race in which Dr. Arnott has conquered ; and if his work 
were withdrawn, and the public needed his ideas, other individuals would 
speedily appear to supply the desired information. In point of fact, every author 
in science knows and feels that he holds his place only until an abler brain appear 
to wrest the laurels from his brow, and the bread from his mouth. He stands in 
a situation similar to that of the champion of England in the barbarous age of 
pugilistic combats. From the first hour of his publication to the last day of his 
fame, he is exposed to the challenge of every rival who chooses to enter the field 
with a view to occupy his place ; and as the public never fails, sooner or later, 
to award the prize to the highest merit, he holds his supremacy only while he is 
able to disfence every competitor. The law which limits his copyright may 
despoil him of his bread, before such a rival has appeared. It may wrest from 
him, and deliver over to men of inferior capacity, the profits of his genius, at 
the very time when these men acknowledge that they cannot, by the exercise 
of their own powers, rival him in the career of public usefulness. If they could 
do so, there would be no need for infringing his rights ; for the publication of a 
treatise of higher merit would extinguish his work, and bring it to an end by 
natural dissolution. Even assuming that it might be centuries before a writer 
appeared, capable of producing such a clear, eloquent, and instructive elucidation 
of the principles of mechanical science as the work in question, this would only 
present stronger motives to Dr. Arnott's representatives to enlarge its circulation ; 
but if they were so insane as not to do so, the inherent rights of all authors should 
not be violated, because the representatives of one happened to be mad. 

This argument applies to works of every kind, the substance of which 
consists of useful and practical ideas. The law which regulates patents for 
mechanical inventions, denies to all individuals the exclusive use of principles ; 
and, in like manner, no author claims, or can justly pretend to, an exclusive right 
to particular ideas, facts, notions, or scientific postulates or inductions. All that he 
contends for, is the right of property in his own special combinations of the 
elements of thought — leaving to all the would the free privilege of making similar, 
or better, combinations of them, at their own discretion, and to the buyers the 
right of preferring the works which they find to be most instructive. 

The third class of publications embraces novels and poetry ; in short, all works 
of fiction and fancy. What would a perpetual copyright of such works imply 1 
It would confer no exclusive property in the emotions, incidents, and ideas which 
form their substance ; but solely in the special combination of words by which 
these are expressed. On one occasion, Mrs. Siddons happened to read one of 
the sublimest passages of Shakspeare, in the presence of the late Mr. Sotheby, the 
translator of Oberon and other works. When she paused, he exclaimed, "Fine 
words ! grand words !" and after a few moments added, "Now these words would 
not have occurred to me ! " This remark renders the thing which would be cov- 
ered by the copyright of such works clear as the noonday sun. Only the special 
combination of words by means of which the ideas and emotions are expressed 
would be protected; and the power of making this combination is a gift so 
peculiarly individual, that no species of property can surpass it in sacredness. 
It depends on a particular size and combination of cerebral organs, and a particu- 
lar temperament, which impart strength, fire, refinement, and sublimity to the 
products of the pen. If man can be said to create anything, it is such works as 
those of Shakspeare, Milton, Byron, Scott, and Campbell. These are pure luxu- 
ries to the public ; they cannot justly be viewed as articles of necessity, because 
the ideas and sentiments contained in them may all be applied freely to general 
use. It is only the magnificent forms in which the inspired sons of genius have 
embodied them, that are claimed as sacred ; and it appears to me to be a mere 
wanton exercise of power in the public, to appropriate these while a representa- 
tive of the author is to be found alive on earth. The first and grand motive to 



APPENDIX. 245 

the composition of such works, is the conscious delight of creating them ; the 
second, the love of fame ; the third, the hope of doing good, directly or indirectly ; 
and the last and least, the expectation of pecuniary profit. Every age produces 
its own sons of genius ; and if, by such incredible suppositions as I have already 
allowed, the representatives of a Shakspeare or a Milton were to stop the sale of 
their works, no substantial interest of the public would suffer : for, even could 
the copies already issued be withdrawn from circulation, new minstrels would 
arise, who, writing under the same native inspirations, and guided by the lights 
of science and of a more advanced philosophy, would sing new songs of emotion 
and fancy, not inferior to those of their predecessors, in fire, energy, and refine- 
ment, while they might surpass them in purity, truth, and all the grander 
elements of thought. 

Does the principle we have been considering extend its sanction to patents, 
conferring on inventors a perpetual, exclusive right to manufacture and use the 
machines, or employ the processes, which they have devised ? I do not think so. 
Mechanical and chemical principles are limited in number, and are or may be- 
come known to thousands ; and there is no possible combination or application 
of them which may not occur to others besides the actual inventors. In fact, 
almost every patentee has other discoverers close at his heels, so that if he had 
not invented his particular machine or process, somebody else would speedily 
have made it known. The invention of gun-cotton is a notable example. " It 
must often happen," says a late writer, "that more persons than one are bent 
upon the same subject at the same time ; if it is one of science, there must be 
always minds engaged upon the boundary which divides the known from the 
unknown ; and if it be connected with the urgent wants of mankind, their pressing 
nature must be continually attracting the attention of those most capable of 
suggesting the means whereby they may be supplied, while their character must 
be for ever pointing to the nature of those means. And thus the discovery may 
be arrived at simultaneously by several persons. For such reasons it is that we 
have Newton and Leibnitz as rivals for the discovery of the differential calculus, 
and Cavendish and Watt for that of the composition of water." — (A Manual for 
Mechanics' Institutions : London, 1839, p. 6.) With literary productions it is 
otherwise ; unless Milton had written, Paradise Lost never could have existed. 
But Watt's steam-engine could and would have been devised by some other 
mechanical genius within a few years. The laws and combinations of mechanical 
powers were known and open to all ; and to give a perpetual right to appropriate 
any of them would be unjust to mankind at large, inasmuch as it would abridge 
their natural right to employ profitably their own inventive powers. As, howev- 
er, priority ought to confer some advantage on the discoverer, and is ofter secured 
at much expense of money, time, and skill, a patent for a limited number of years 
is consonant to reason and justice ; and such, accordingly, the law of Britain 
allows. 



On the Powers in Relation to the Duties of Government. 

The English pride themselves on being a practical people, and despise systems 
and theories : but practice without system really means practice without percep- 
tion of the relation between means and the end ; for wherever a distant object is 
pursued through intermediate means, there design must be entertained ; and in 
endeavoring to accomplish design, men must proceed on some notion or other 
of the relation of cause and effect—and this is system. Nature, physical and 
moral, being the product of Intelligence, Wisdom, and Benevolence, is full of de- 
sign. Every portion of it is exquisitely adapted to all the others, with the view 
of bringing forth determinate results ; and it is therefore in the highest degree 
systematic. To act systematically, therefore, if our system be a sound one, is to 
act in conformity with the order of Nature ; to act, regardlessly of system, is to 
prefer limited to extensive experience as our guide, and to hazard at every step 
an encounter with some of Nature's irresistible laws or indomitable arrangements, 
which will set our puny efforts to move in a contrary direction at defiance. In 
the working of no human institution, therefore, is a system of sound and consist- 
ent principles more necessary to guide our practice than in that of government ; 
and especially at the present time, when numerous calls are daily made on the 
Legislature and Executive to undertake new and unheard of duties ior the 
benefit of the people. 

One postulate may be safely stated in regard to government— that its duties 

•21* 



/ 



246 APPENDIX. 

and its powers should bear some rational or systematic relation to each other. 
I consider the Legislature to be the delegated organ of the people for expressing 
their will and constituting it into law; and the Executive to be the power com- 
missioned by the people to carry that law into effect. It becomes important to 
ascertain whether any, and, if so, what limits should be prescribed to the functions 
of these two branches of government. 

A glance at some of the questions which now occupy public attention may serve 
to throw light on the importance of this inquiry. In Wiirtemberg, Bavaria, and 
some other German states, which enjoy Representative Constitutions, there is a 
law prohibiting marriage until the intended spouses show that they possess prop- 
erty sufficient to enable them, with the aid of their industry, to provide in a 
manner suitable to their condition in life, for themselves and the children whom 
they may produce. In Great Britain and Ireland no such law exists, and the 
proposal to enact it would be regarded as a violent interference with the liberty 
of the subject 

Nevertheless, Nature, who, as I have said, is systematic in her arrangements, 
has preceded these German states in this legislation. She has established a law. 
which operates at all times and in all countries, as a guide for human conduct. 
She has constituted man an organized being, and rendered a constantly recur- 
ring supply of organized food indispensable for his subsistence. Organized matter 
is produced by nature in two forms, vegetable and animal. Time, culture, and 
care are indispensable to the production of both. Nature, therefore, requires 
that the laborer should possess capital sufficient to enable him to live during the 
period when his food is growing, and to supply him with implements sufficient to 
conduct the cultivation or process on which it depends. Further, Nature sends 
varieties of seasons, some productive, and others unproductive ; but has bestowed 
on man faculties of observation and reflection to enable him to perceive that this 
is her order of proceeding, and sentiments of prudence to prompt him to adapt 
his conduct to her arrangements. 

The law of Nature, then, is, that such individuals as attend to these conditions 
shall enjoy food, raiment, shelter, and all the other means of a comfortable phys- 
ical existence. By intelligent industry they may produce food or some valuable 
commodity which the producers of food will take in exchange for it. By pru- 
dent economy, they may reserve a portion of the produce of their industry to 
serve them as means of subsistence in unpropitious seasons, and to enable them 
also to provide for their children until they are capable of supporting themselves. 
For this conduct, Nature rewards them with plenty. 

On the other hand, Nature has also enacted that those who neglect these condi- 
tions shall perish by want of food. If the order of Nature is left to work out its 
own results, the consequences here stated will inevitably ensue ; and as I regard 
the natural arrangements as appointed by a wise and benevolent Being, I cannot 
doubt that this law, when viewed in relation to the human constitution and the 
happiness of the race, is beneficial. 

While, however, the British and Irish people deny the right of the government 
to enforce, by any means whatever, obedience to this natural law, they at the 
same time demand that the government shall step in between them and the 
agency of God's providence ; that it shall put forth its hands, and by force of law 
take food from the stores which the industrious and prudent have saved, Cfor, be 
it observed, without industry and prudence no stores could exist,) and bestow it 
on the idle and imprudent, in order to feed them, and rescue them from the con- 
sequences appointed by Providence to follow from their own course of action. 
If such a mode of proceeding be a specimen of "practical," it is certainly not one 
of "systematic" wisdom; for it is at variance with every notion of a divinely 
ordained and systematic connection of cause and effect in this world's affairs. 
If it were carried forth to its ultimate results, the prudent would be devoured by 
the imprudent, and destitution would envelope all. 

The Creator, however, has bestowed on man organs and sentiments of Benev- 
olence, which prompt him to succor his erring fellow creature, even when, 
through ignorance, indolence, or other vices, he has exposed himself to these 
visitations. But those who believe in the real existence and invariable agency of 
God's providence, and who view it as founded in wisdom and benevolence, will 
be disposed, in relieving the destitute, to act systematically in conformity to the 
divine laws. They will use every possible exertion to prevent those who are 
now suffering the penalty of their infraction of the laws of Nature from con- 
tinuing to do so. They will insist that henceforth the objects of their bounty shall 



APPENDIX. 247 

practice industry directed by intelligence, and economy dictated by prudence, in 
order to bring themselves under the beneficial operation of that order of nature 
which none can change, and none can evade. They will claim the right of doing 
so. founded on the prior natural right of protecting their own property from 
being swallowed up by clamant beggary, and their own feelings from being 
lacerated beyond endurance by scenes of suffering that render fife miserable ; 
yet neither of these ends can be accomplished, unless the destitute who demand 
to partake of the fruits of the industry and prudence of others, shall agree hence- 
forth to conform their conduct to God's natural law, and to become industrious 
and prudent themselves. Nevertheless, when it is proposed to place on the 
statute book enactments calculated to carry this condition of relief into practical 
effect, by prohibiting marriage until evidence is produced of the possession of 
property, of knowledge of some useful calling, and of habits of industrious ap- 
plication to that calling, all voices are raised to denounce the measure as a violent 
infringement of individual liberty. The remedy proposed is to enact a poor law 
to compel the rich — that is, those who, as a class, have obeyed the natural laws — 
to maintain the poor, or those who, as a class, have set them at defiance ; without 
giving the former the power of enforcing industry, economy, prudence, and self- 
restraint on the latter, as the condition of obtaining the aid which they solicit. 
In legislation, the improvident are assumed to have rights which Nature never 
conferred on them ; and these are held to be too sacred to be violated by man. 

Be it so : let us assume that man has no right to enforce by his legislation the 
prior legislation of Providence, and let us leave the statute book unstained by 
such an inroad on the rights of the destitute ; but then let us be consistent. As 
God has established a connection, which man cannot dissolve, between indolence 
and poverty, incapacity and want, ignorance and misfortune, immorality and 
misery, and intemperance and disease, legislators, clearly, are not justified in 
placing on the statute book enactments having for their object the severance of 
this connection. They have no right to enact that the ignorant and indolent Irish 
peasant, and the equally ignorant and indolent Highland cotter, who are suffering 
the pains of want in virtue of that connection, and who, at the same time, deny 
the right of the legislature to compel them to change their habits, have a title to 
supply their necessities from the stores of their industrious and prudent fellow 
countrymen, who liave attended to the divine enactments, and received those very 
stores from a just and bountiful God as their reward. Let us be consistent ; and, 
while we leave them in possession of the liberty to set God's laws at defiance, let 
us leave them also to experience the appointed consequences of doing so. 

These consequences, I repeat, are of divine appointment, and they are neither 
merciless nor unjust ; their obvious design is to present motives to man to con- 
form Ms actions to the laws of the organic and physical world in which he is 
placed ; which laws, when obeyed, are wisely adapted to minister to his happi- 
ness. Moderate, regular, and steadily applied labor, guided by intelligence, is 
highly beneficial to man's organic constitution, while it is the appointed source also 
for the supply of his wants, and the augmentation of his enjoyments. If, then, 
human legislators, as is generally contended, have no right to enforce these laws 
by their authority, let them not be called on to thwart them. By endeavoring to 
do so, they cannot, in the end, benefit the victims of ignorance, indolence, and 
imprudence ; because while they continue to cherish and practice the habits 
which they claim as their sacred birth-right, their numbers, their misery, and 
their destitution will increase, and a day will arrive when the industrious and 
prudent will be overwhelmed by the burden. God's arrangements of this world 
are, as 1 have said, systematic. One thing is adapted to another ; and we may 
enact and practice as we please, but escape we cannot from the appointed conse- 
quences of courses of action which contradict his enactments. We must aban- 
don these courses, and submit ourselves like little children to his laws, or suffer 
till we learn humility and wisdom. 

The peasantry of Ireland and the Highlands of Scotland have, for generation 
after generation, been acting in habitual disregard of these laws of Providence, 
and sutfering greater or less destitution. The clergy of all persuasions have been 
the spectators of their conduct, but, as the order of Nature is not recognized in 
any of their standards of belief as of divine authority, or as teaching rules tor 
practical conduct, which merit the sanction of the religious sentiments, they have 
not applied their great and powerful influence toward rescuing these victims from 
the gulf in which they are sunk, by expounding to them the natural laws of God. 
and cheering them to conform their conduct to those enactments, They have 



248 APPENDIX. 

blessed the marriages of the indolent, ignorant, and imprudent, against which 
God had set his seal as the preludes to more misery, indolence, and vice. They 
have prayed with, soothed, and comforted with the hopes of a heavenly inherit- 
ance, the victims of fevers which sprang directly from avoidable violations of the 
laws of organization ; without instructing the unhappy sufferers in the causes of 
their misery, or leading them to listen to the voice of a benevolent God, calling 
on them to avoid the causes, for their own welfare, that they might escape from 
their effects. I need not proceed with these illustrations ; but repeat emphati- 
cally, that in the standards of no church with which I am acquainted, is there a 
recognition of God's natural laws as guides for human conduct, which, on account 
of their divine origin, and of their inherent beneficence and wisdom, are worthy 
of being enforced by the power and authority of the religious sentiments ; and 
that countless evils have flowed from this omission. 

Our legislators should consider whether they have not been equally negligent 
of all intentional and consistent recognition of the divine sway in this world's 
affairs. As already observed, the Houses of Parliament have conferred on the 
destitute poor a right to support at the expense of the rich ; while they have 
denied the right of the legislature itself to control the conduct of the poor, even 
when destitution is the inevitable and self-evident result of their habits and con- 
dition. They have recognized in, and conferred on, the destitute, a right which 
God never gave them. He confers on all who are born, a right to live as long as 
they conform their conduct to his physical and organic laws, which enact the 
practice of temperance, intelligence, industry, and prudence, as the conditions on 
which he continues the boon of existence. Parliament, wiser than Providence, 
confers on those who become destitute by trampling all God's conditions under 
foot, the right to live at the expense of those who observe them. It enacts a poor 
law, unaccompanied by any adequate provision for an educational, moral, or re- 
ligious control over the conduct of those who are to benefit by it, with a view to 
leading them to obedience to the divine enactments ! And verily, we have our 
reward. Bishops,* churches, and religious teaching are all on the increase ; but 
so is destitution ! The source of these incongruous results appears to me dis- 
cernible. The world is arranged by God on systematic principles, wisely related 
to the nature of man ; but people, clergy, Parliament, men of science, and phi- 
losophers, generally have not yet recognized this truth, or sought to apply it to 
practical objects ; they have been, and are, practical, without conforming their 
practices to the system of nature, and failure, confusion, uncertainty, and disap- 
pointment, arc the inevitable consequences. 

To prevent misapprehension, I beg distinctly to state that I am no advocate for 
cold-heartedly abandoning the destitute to drink the full cup of their misery. 
On the contrary, although I deny in them a right to claim a share of the goods 
of their industrious and prudent fellow countrymen while they continue to ad- 
here to their present habits as their sacred privilege, I recognize the obligation 
imposed on man by his moral emotions to practice compassion toward them, 
and. advocate practical measures to alleviate misery wherever it exists, and from 
whatever source it springs. But I humbly maintain that he who practices this 
virtue, not only has a right, but lies under a moral and religious obligation, so to 
apply his bounty as not to injure still more deeply the objects of it, nor improp- 
erly to increase their numbers, nor to encourage them to continue in disobedience 
to the divine laws. He ought to use the power which his possession of wealth 
bestows on him, to enforce their obedience to the divine institutions, equally for 
their benefit, and for his own just protection against their otherwise constantly 
increasing misery and numbers. 

But we shall probably be told that to represent the order of nature as of divine 
appointment, and a source of momentous instruction to the human mind, to 
call for the practical application of this instruction to the world's affairs, sanc- 
tioned and enforced by all the weight and authority of the religious sentiments, 
is to commend infidelity to the acceptance of the people ! My only reply is, that 
it does not appear so to me. With an understanding deeply penetrated by con- 
viction of the reality, the benevolence, the resistless power, and the all-pervad- 
ing influence of God's arrangements and adaptations in the natural, animate, and 
inanimate creation, I find myself somewhat in the condition of the English 
squire of the seventeenth century, who, as described by Mr. Carlyle, "clearly 
appears to have believed in God, not as a figure of speech, but as a very fact, very 

* Four new bishops have been created during this session of Parliament, 1847= 



APPENDIX. 249 

awful to the heart of the English squire ;" and I feel myself impelled by a sense 
of duty to offer these expositions to the public. 

Whatever opinion may be formed on this topic, it is clear that where power is 
denied to the government to prevent infraction of the natural laws, it should be 
deprived also of the power of rolling over the consequences of that infraction 
from the guilty upon the innocent; in short, its powers and duties should be 
commensurate. 



THE END. 



FOR GRATUITOUS DISTRIBUTION. 



WORKS 



NATURAL SCIENCES, 




jHCfflLANO ENGRAVER 



PUBLISHED BY 



FOWLERS AND WELLS, PHRENOLOGISTS, 

NO. 131 NASSAU STREET, 

NEW YORK. 



FOR SALE BY 

OUR AGENTS, AND BOOKSELLERS GENERALLY 

THROUGHOUT THE UNION. 



! 



WORKS 

OX THE 

IATTJRAL SCIEICES, 

PUBLISHED BY 

FOWLERS AND WELLS. 



O. S. & L. N. FOWLER. 

PHRENOLOGY PROVED, ILLUSTRATED, AND AP- 

PLIED, Accompanied by a Chart, Embracing a Concise Ele- 
mentary View of Phrenology, with Forty -three Illustrative 
Engravings. Thirty -sixth Edition, enlarged and improved. 
12mo. Cloth, $1 00 ; leather, $1 25. 

"This is a Practical Standard Work, and may be described as a Complete 
System of the principles and practice of Phrenology. The authors have taken great 
pains to illustrate the Science by an innumerable number of facts, which they have 
accumulated after years of patient investigation. Besides important remarks on the 
Temperaments, it contains a description of all the primary mental powers, in seven 
different degrees of developement, together with the combinations of the faculties ; 
also the location of the organs in the head, with a view of the moral and theological 
bearings of the Science. In short, we regard this work as not only the most important 
of any which has before been written on the Science, but as indispensably necessary 
to the Student, who wishes to acquire a thorough knowledge of Phrenological 
Science." — New York Review. 

O. S. FOWLER. 

HEREDITARY DESCENT : ITS LAWS AND FACTS 

APPLIED TO HUMAN IMPROVEMENT. A new and 

improved Edition. Illustrated with Twenty-five Engravings. 
12mo. Cloth, 75 cents ; paper, 50 cents. 

" That the physical, mental, and moral qualities are transmissible, no one will deny. 
How important, then, that we understand the conditions of the body and mind, which 
produce either favorable or unfavorable impressions on the yet unborn. The import- 
ance of this subject is immense, and should be examined by all." — Literary Messenger. 

" This work developes those laws which govern the hereditary tendencies of our 
nature, and classifies under their appropriate heads, the diseases which are frequently 
transmitted from parent to offspring, proving conclusively, that Insanity, Scrofula, 
Apoplexy, Consumption, and other diseases, as well as Vices, Virtues, Talents of 
Various Kind3, etc., etc., are inherent throughout families and nations. The ob- 
ject of the work is to show how to improve offspring, by producing qualities the 
most desirable. Every parent should possess a copy." — Daily Globe. 

DR. ANDREW COMBE. 

THE PRINCIPLES OF PHYSIOLOGY APPLIED TO 

THE IMPROVEMENT OF PHYSICAL AND MEN- 
TAL EDUCATION. To which is added Notes and Obser- 
vations, by O. S. Fowler. From the improved Edinburgh 
Edition, with illustrations. 8vo. Cloth, 75 cents. 

11 This work has received the highest degree of approbation both in Europe and 
America that it is possible for man to bestow. Messrs. Fowler and Wells deserve 
much credit for bringing out the new and improved Edition, which is by far superior 
to all others. It is printed on large type, and should be read by every Man, Woman, 
and Child in the land."— N. Y. Tribune. 



0- 



FOWLER AND WELLS' PUBLICATIONS. 



O. S. FOWLER. 

RELIGION, NATURAL AND REVEALED: or THE 

NATURAL THEOLOGY AND MORAL BEARINGS 
OF PHRENOLOGY, Including the Doctrines Taught and 
Duties Inculcated thereby, compared with those enjoined in the 
Scriptures, together with a Phrenological Exposition of the Doc- 
trines of a Future State, Materialism, Holiness, Sins, Rewards, 
Punishments, Depravity, a Change of Heart, Will, Foreordina- 
tion, and Fatalism. Tenth Edition, enlarged and improved. 
8vo. Cloth, 75 cents; paper, 50 cents. 

11 The momentous inquiry, ' What is the true religion ?' is answered in this work, 
by showing what religious creeds and practices harmonize, and what conflict, with 
the nature of man, as unfolded by this Science. If ever our various religious opinions 
are to be brought into harmonious action, it must be done through the instrumentality 
of Phrenological Science." — Christian Freeman. 

BY THE SAME AUTHOR. 

PHYSIOLOGY, ANIMAL AND MENTAL ; APPLIED TO 

THE PRESERVATION AND RESTORATION OF 
HEALTH OF BODY AND POWER OF MIND. 
With Twenty-six Engravings on Wood. 12mo. Cloth, 75 
cents; mail edition, 50 cents. 

" This will be found a more valuable work for the use of the people generally, than 
any other which has yet been written. It is free from technicalities, and may be 
easily understood and applied by every individual. The whole subject of Physiology 
is thoroughly examined, and all the necessary information relative to our physical 
well-being imparted. 

" The author takes strong grounds against the use of Tobacco, Tea, Coffee, Liquor, 
and stimulant ingredients generally. Those portions relating to the effects of different 
kinds of food on the body and mind are particularly valuable. The causes and cure 
of Consumption should be read by every youth in the land. By understanding the 
laws of life and health contained in this work, much agony and suffering might be 
avoided, and many valuable lives prolonged. Although but recently published, this 
work has already passed through severaf editions." — Hunt's Merchant's Magazine. 



BY THE SAME AUTHOR. 

SELF-CULTURE AND PERFECTION OF CHARAC- 
TER ; INCLUDING THE MANAGEMENT OF 
YOUTH. Improved Stereotyped Edition. 12mo. Cloth, 75 
cents ; paper, 50 cents. 

"Self made or never made," is the motto of the author. This is a capital work, 
and in our opinion the best of the kind in the English language. It is really a gem. 
No individual can read a page of it without being improved thereby. We wish it 
were in the hands of every young man and woman in America, or even the world. 
The great beauty of this work consists in the fact, that it tells us how to cultivate oi 
restrain the organs of the brain, and establish an equilibrium. With this work, in 
connection with Physiology, Animal and Mental, and Memory and Intellect- 
ual Improvement, we may become fully acquainted with ourselves, (they being 
related to each other,) comprehending as they do, the whole man. We advise all 
to read these works." — Common School Advocate. 



g 

FOWLER AND WELLS' PUBLICATIONS. 



MRS. HUGO REID 

WOMAN: HER EDUCATION AND INFLUENCE; WITH 

A GENERAL INTRODUCTION BY MRS. C. M. 
KIRKLAND. Illustrated with thirteen portraits of distin- 
guished Women. 12 mo. Cloth, extra gilt, 75 cents : paper, 
40 cents. 
"Can man be free, if woman be a slave ?" is the motto adopted by the author. 

"To improve and elevate woman, is but to elevate and improve man. By nature,. 
our rights, interests, and privileges are one. For either to assume the supremacy, 
would be only to degrade the other. 

"That our spheres are different, no one will deny. Woman is the natural educator 
of children ; and if it be a fact that " education forms the common mind," then the 
question as to who exerts the greater influence, may at once be solved. How 
important, then, that woman be properly qualified to discharge this most responsible 
obligation. 

"Multiplying books on this subject will have a tendency to facilitate the great cause 
of human progression and advancement. 

" This work has been translated into the principal European languages, and has 
gained for the author an enviable reputation. Mrs. Kirkland's introduction, together 
with the beautiful illustrations, are decidedly great additions to the work, and will 
render it much more interesting to the general reader." — Introduction. 

"Woman wields the Archimedean I. ever, whose fulcrum is childhood, whose length 
is all time, whose v/eight is the world, and whose sweep is eternity." — American 
Phrenological Journal. 

LOUIS OORNAHO. 

A SOBER AND TEMPERATE LIFE : WITH NOTES AND 

ILLUSTRATIONS BY JOHN BURDELL, Dentist. 

Containing directions as to the quantity of food necessary to pro- 
long life to an hundred years. 18mo. With numerous illustra- 
tions, and a likeness of the author. Price 25 cents. 

" It has been translated into nearly every language, and is really a superior work. 
Most of our modern Physiologists have derived their most important principles from 
this author. Those who read it will live more in accordance with the laws of nature." 
— Newark Daily Advertiser. 

" The author, by his temperate habits, attained the remarkable age of 104 years, and 
was one of the best men of the age. Be wise and read this work." — Montreal Signal. 



JUSTUS LIE BIG, M. D., F. R. S. 

CHEMISTRY APPLIED TO PHYSIOLOGY, AGRICUL- 
TURE, AND COMMERCE. With additions by Dr. John 
Gardner. Large octavo. Best edition, paper, only 20 cents. 

"It contains a vast amount of chemical information relative to almost every depart- 
ment of industry and wealth." — New England Cataract. 

" No farmer, mechanic, or manufacturer should be without it. Its extreme cheap- 
ness places it within the reach of every individual, and notwithstanding its low price 
(only 20 cents), it is printed in the very best manner." — Scientific American. 

" It illustrates the necessity of a knowledge of Chemistry to advance and perfect 
Agriculture, or the Arts and Sciences generally. It may be sent by mail at a trifling 
postage." — Star of Temperance. 



a 



H3 



FOWLER AND WELLS' PUBLICATIONS. 



JUDGE E. P. HURLBUT. 

HUMAN RIGHTS AND THEIR POLITICAL GUAR- 
ANTIES; FOUNDED ON THE MORAL AND INTEL- 
LECTUAL LAWS OF OUR BEING. Phrenology adopted 
as the true philosophy of mind. With Notes and an Appen- 
dix by George Combe. New and enlarged edition. Cloth, 
75 cents : paper, 50 cents. 

" This is the production of a distdnguishsd Phrenologist, a strong mind, an honest 
judge, and a man of great moral worth. He is a phrenological judge, and of course, 
being also a man of uncommon natural capabilities, takes comprehensive and correct 
views of human rights. Soaring infinitely above the petty technicalities of legislation, 
he descries — as none but a legal Phrenologist could descry — the inherent, inalienable 
rights of humanity ; and being most happy as a writer, it is easy to see why and how 
his work becomes possessed of uncommon merits. No Phrenologist can read proba- 
bly a page of this work without literally exulting in the truths it embodies. It might 
be called condensed truth. Our laws are faulty: He shows wherein. The inaliena- 
ble rights of humanity are by no means all secured, and many of them are tyrannically 
violated, by our laws. He shows what. He shows how to secure them. 

Especially, he shows woman's constitutional rights, particularly as regards retaining 
the control of her own property after marriage. His strong sympathy, and still 
stronger reasonings, in behalf of down-trodden woman, will at least secure him a 
reading by the advocates of "woman's rights." indeed, no true republican should 
deny himself the rich intellectual and moral feast he serves up." — Amer. Phren. Jour. 

£Cj" M- 1 *- Hurlbut is now Judg-e of the Supreme Court in the city of New York. 



DR. JOHN B. NEWMAN. 

FASCINATION : OR THE PHILOSOPHY OF CHARMING. 

ILLUSTRATING THE PRINCIPLES OF LIFE IN 
CONNECTION WITH SPIRIT AND MATTER. 12mo. 
Improved and stereotyped. Beautifully illustrated in the highest 
style of the art. Cloth, extra gilt, 75 cents : paper, only 40 cents. 

" The author, (a medical man of some eminence,) pretends to have established the 
truth and utility of Magnetism, on the natural laws of our being. He proves con- 
clusively, the fact, that the mind may act independently of the body, and states 
numerous cases where Clairvoyance has been produced by artificial means, and 
many of the most wonderful experiments performed, and is the most interesting 
work on the subject of Mental Electricity. 1 ' — Southern Patriot. 



L. N. FOWLER. 

SYMBOLICAL HEAD AND PHRENOLOGICAL CHART. 

IN A MAP FORM. Designed to convey at one view the 
natural language of each organ of the mind. Price, 25 cents. 

" This map is highly ornamental, and in every way suitable for framing. Every 
parlor and office should have a copy of this beautiful and instructive picture. It is 
a lithographic print, executed in the highest style of the art. Each organ is illustrated 
by a familiar design, which conveys a correct impression of the functions of each organ. 
For example : Firmness, No. 14, is represented by a mule whipped by one man, and pull- 
ed by another, but obstinately refusing to go either way. Veneration, No. 18, by a person 
in the attitude of prayer. Benevolence, No. 19, by the good Samaritan." — Express. 



8h 



p — & 

FOWLER AND WELLS' PUBLICATIONS. 



O. S. FOWLER. 

MEMORY AND INTELLECTUAL IMPROVEMENT: 

APPLIED TO SELF-EDUCATION AND JUVENILE 
INSTRUCTION. Twentieth edition, enlarged and improved. 
With twenty-six engravings. 12mo. Cloth, 75 cts. : paper, 50 cts. 

. " The subject of Mental and Physical Education is beginning to attract public atten- 
tion. Many of the old-fashioned systems have already passed away, and no more 
plausible or reasonable plans have yet been adopted than those presented by Mr. 
Fowler. The science of Phrenology, now so well established, affords us important 
aid in developing the human mind, according to the natural laws of our being. 
This, the work before us is pre-eminately calculated to promote, and we cordially 
recommed it to all. A good memory cannot be overrated." — Democratic Review. 



MRS. L. N. FOWLER. 

FAMILIAR LESSONS ON PHYSIOLOGY AND PHRE- 

NOLOGY: DESIGNED FOR THE USE OF CHILDREN 
AND YOUTH IN SCHOOLS AND FAMILIES. Illus- 
trated with sixty-five engravings. Stereotyped edition. 12mo. 
Cloth, $1 : school edition, in boards, with embossed leather back, 
75 cents. 

"The above are the titles .of two distinct books, each complete in itself; yet being 
but parts of one great subject, they may be appropriately classed and studied together. 
These works are prepared for, and adapted to, the comprehension of children, and 
we hope to see them immediately adopted as text books in all our common schools. 
The natural language of each organ is illustrated by beautiful wood cuts, and the 
books are brought out in a style well adapted to the family circle, as well as the 
school room." — Teachers' and Parents' Companion. ' 

u We acknowledge having drawn many precious hints from their pages, by which we 
have been enabled to correct some important errors. A single leaf from these works 
is worth a million yellow-covered novels." — Vermont Phoenix. 

£3" The price of Physiology, cheap edition, is 25 cents ; Phrenology, do., 50 cents.. 



L. N. FOWLER. 

MARRIAGE: ITS HISTORY AND PHILOSOPHY; 

WITH A PHRENOLOGICAL AND PHYSIOLOGICAL 
EXPOSITION OF THE FUNCTIONS AND QUALI- 
FICATIONS FOR HAPPY MARRIAGES. Twelfth edi- 
tion, amply illustrated with engravings. 12mo. Cloth, 50 cents : 
paper, 37^ cents. 

" Tt contains a full account of the marriage forms and ceremonies of all nations and 
tribes, from the earliest history, down to the present time, some of which are curious, 
and extremely interesting. As a matter of history, we deem it worthy a place in 
every public and private library. Besides the history, a phenological and physiological 
exposition of the male and female organizations are fully given ; also, illustrations 
showing what temperaments are by nature best adapted to each other. Those who 
have not yet entered into the matrimonial relations, should read this book, and those 
who have, may profit by a perusal. An excellent present for either sex." — N. Y. 
Illustrated Magazine. 



FOWLER AND WELLS' PUBLICATIONS. 



DR. J. G. SPURZHEIM. 

EDUCATION: FOUNDED ON THE NATURE OF 

MAN; WITH AN APPENDIX BY S. R. WELLS. 
Containing an illustrated description of the Temperaments, and 
a brief analysis of all the Phrenological Organs. With a por- 
trait of the author. 12mo. Embossed muslin, 75 cents; mail 
edition, 50 cents. 

" We regard this volume as one of the most important that has been offered to the 
public {'or many years. Every page is pregnant with instruction of solemn import j 
and we would that it were the text book, the great and sovereign guide, of every 
male and female in the land, with whom rests the responsibility of rearing or educating 
a child." — Bost. Med. and Surg. Jour. 

"It is worth its weight in gold." — Evening Gazette. 

" We hope soon to see it introduced into all the libraries, public and private. The 
beautiful style in which it is published, renders it in every way suitable for a pres- 
ent, nor could a more valuable one be given." — JV. Y. State Journal. 



APPROVED BY FOWLER AND WELLS. 

THE PHRENOLOGICAL BUST. DESIGNED ESPECIALLY 

FOR LEARNERS : Showing the exact location of all the 
Organs of the Brain fully developed, which will enable every 
one to study the science without an instructor. It may be pack- 
ed and sent with safety, by express, or as freight, (not by mail,) 
to any part of the globe. Price, including box for packing, 
only $1 25. 

" This is one of the most ingenious inventions of the age. A cast made of plaster 
of Paris, the size of the human head, on which the exact location of each of the 
Phrenological organs is represented fully developed, with all the divisions and 
classifications. Those who cannot obtain the services of a professor, may learn in a 
very short time, from this model head, the whole science of Phrenology, so far as the 
location of the organs is concerned.'' — N. Y. Daily Sun. 



REV. JOHN BOVEE DODS. 

LECTURES ON THE PHILOSOPHY OP MESMER- 
ISM AND CLAIRVOYANCE. With instruction in its 
process and practical application. Illustrated w T ith a likeness 
of the author in the act of producing magnetic sleep. New and 
enlarged edition. 12mo. Muslin embossed* 50 cents : cheap 
edition, only 25 cents. 

11 The merits of the work may be inferred from this fact : an audience of over 
two thousand people, composed of the most intelligent citizens of New England, 
was held six evenings in succession, chained in the most profound silence, listening 
to these truly philosophical lectures, and witnessing surgical operations without pain ; 
and other experiments, at once convincing, and full of great practical utility to every 
human being. 

" This work has been recently re-published in England, and has been favorably 
received by the most scientific men of Europe." 



FOWLER AND WELLS' PUBLICATIONS. 



O. S. FOWLER. 

LOVE AND PARENTAGE: APPLIED TO THE Im- 
provement OF OFFSPRING; Including important 
directions and suggestions to lovers and the married, concerning 
the strongest ties and the most sacred and momentous relations 
of life. 12mo. Illustrated. Price, 25 cents. 

" To all who have ever tasted the sweets of Love ; or felt its sting, or consummated 
its delightful union, or who anticipate its hallowed cup of tenderness, or expect to fold 
its "dear pledges" in parental arms — more especially to woman, the very embodi- 
ment of this angelical emotion — to all who would enjoy its heavenly embrace, avoid 
its pangs, or render their prospective children healthy, and talented, and lovely, 
I dedicate these love-inspiring pages." — The Author. 

"As the title indicates, it is a work of great importance, relating, as it does, both to 
the present, and the rising generations." — N. Y. Emporium. 



BY THE SAME AUTHOR. 

AMATIVENESS: OR, EVILS AND REMEDIES OF 

EXCESSIVE AND PERVERTED SEXUALITY; In- 
cluding warning and advice to the Married and Single. 
Being a Supplement to " Love and Parentage. 1 ' 12mo. Price, 
12i cents. 

fi The object of this work is to spread information in regard to the regulation and 
legitimate exercise of one of the most, if not the most important faculties of the 
human organization, the perversion of which has produced more misery than can 
possibly be estimated." — Publisher. 

i; While a prudish delicacy has covered up the subject, and seemed shocked at the 
bare mention of it, this under-current has been wearing away the health and happiness 
of individuals and the community, till it absolutely forces itself upon our attention, 
and calls loudly for a remedy. Silence and ignorance have been tried, and they are 
found to favor the evil : the only reasonable course, then, is to diffuse knowledge in 
regard to the matter. Let all have light; let the evil be thoroughly exposed, and 
proper motives be brought to bear against it, and its prevalence will soon be sensibly 
diminished. The object of this work is, to aid in spreading such information as 
may serve to prevent disease and restore health." — George Gregory. 



BY THE SAME AUTHOR. 

TEMPERANCE AND TIGHT LACINCx : FOUNDED 

ON THE LAWS OF LIFE, as developed by the sciences 
of Phrenology and Physiology ; Showing the injurious effects 
of stimulants, and the evils inflicted on the human constitution, 
by compressing the organs of animal life. Illustrated with 
appropriate engravings. 8vo., one volume. Price, 12J cents. 

"Natural waists or no Wives," "Total abstinence, or no Husbands," are the 
mottos of the author. 

" This is not only the most profound Temperance document we have ever seen, 
but its principles will apply with equal force to every thing heating and stimulating 
in its nature." — Journal of Health. 

" These works should be placed in the pews of every church throughout the length 
and breadth of the land. The two curses, intemperance and bad fashions, are de- 
stroying more human beings yearly, than all other causes ; to arrest which, these 
little (great) works will render effectual aid." — Dr. Beecher. ^ 



FOWLER AND WELLS' PUBLICATIONS. 



O. S. FOWLER. 

MATRIMONY: OR PHRENOLOGY AND PHYSIOLOGY 

APPLIED TO THE SELECTION OF CONGENIAL 
COMPANIONS FOR LIFE. Including directions to the 
married for living together affectionately and happily. Illustrated. 
Octavo. Price, 25 cents. 

" The object is to show the influence of the domestic affections over the weal or wo of 
man ; the nature and conditions of true love, how to make a proper choice of husband 
or wife, how to conduct courtship, and augment the affections of a companion. 
Were this work more generally read, and its principles applied, much matrimonial 
discord would be prevented." — Hunt's Merchants Magazine. 

" Judging from the popularity of the work, (rising of 60,000 copies having been sold 
in the United States, besides having been republished in London,) we can only say, 
no man or woman, married or unmarried, should fail to possess a copy of the 
work." — Saturday Visitor. 

This work has recently been republished in London, and several editions sold. 



BY THE SAME AUTHOR. 

SYNOPSIS OF PHRENOLOGY: DESIGNED FOR THE BSE 

OF PRACTICAL PHRENOLOGISTS. Amply illustrated. 
Of which one hundred and seventy-five thousand copies have 
been sold. 12mo. Price, single copy, 61 cents. 

" The proportionate size of the Phrenological organs of the individual examined, 
and, consequently, the relative power and energy of his primary mental powers ; 
that is, his moral mid intellectual character and manifestations, will be indicated by the 
written figures, 1, 2, 3, 4, 5, 6, 7: figure 1 signifying very small; 2, small ; 3, mod- 
erate ; 4, AVERAGE ; 5, FULL ; 6, LARGE ; 7, VERY LARGE. 

In order to render the indications still plainer, these figures will be written in the 
table opposite to the organs marked, and in the perpendicular column headed "Full," 
"Large," or "Small," according as he has the organs full, large, or small. Adjoining 
these written figures will be references to "Phrenology Proved," &c, where he will 
find not only his individual faculties described in that degree in which he possesses 
them, but, also, the result produced by their combined action — he reading as descrip- 
tions of himself, those combinations which he is found to possess." — Preface. 



L. N. FOWLER. 

THE PHRENOLOGICAL AND PHYSIOLOGICAL ALMA- 
NAC. PUBLISHED YEARLY. Containing illustrated 
descriptions of many of the most distinguished characters living. 
The annual sales of which are 200,000 copies. Price, per do- 
zen, only 50 cents : single copy, 6£ cents. 

"This is a comprehensive year book, containing all the usual chronological matter, 
together with the application of Phrenology to some of the most interesting characters 
of our times, and is the richest annual for six cents we ever saw." — Chronotype. 

"We heartily recommend it to every family, being as good an Almanac as any, 
and possessing a valuable collection of Phrenological facts." — World's Index. 

"It contains an amount of reading equal to many a half dollar book." — N. H. Oasis. 



FOWLER AND WELLS' PUBLICATIONS. 



O. S. FOV/LER, EDITOR. 

AMERICAN PBRENOLOGICAL JOURNAL AND MIS- 

CELLANY: DEVOTED TO PHRENOLOGY, PHYS- 
IOLOGY, MAGNETISM, SELF-IMPROVEMENT, AND 
GENERAL PROGRESSION. To be published monthly, 
each number containing thirty-two large octavo pages, and illus- 
trated with portraits of distinguished individuals. Terms, per 
year, in advance, only $1. 

" No mother who is rearing a family should be without this work." — N. E. Cataract. 

" It occupies a place which is filled by no other work, and has acquired a reputation 
which nothing but real worth can secure ; and what is more important, its articles 
are perfectly adapted to the wants of society." — Primitive Expounder. 

"It is one of the ablest works ever published." — St. Mary's Sentinel 

"Messrs. Fowlers & Wells, the celebrated Phrenologists of New York, probably 
understand the science better than any other men now living, and the promptness 
with which they fill all contracts, leads us to believe that bump No. 15 is well de- 
veloped." — O. Tocsin. 

GEORGE COMBE AND ROBERT COX, EDITORS. 

MAGAZINE OF MORAL AND INTELLECTUAL SCI- 
ENCE, AND EDINBURGH QUARTERLY PHRE- 
NOLOGICAL JOURNAL. Containing Essays upon Phre- 
nology as a department of physiological science, exhibiting its 
varied and important applications to the most interesting questions 
of social and moral philosophy, to legislation, medicine, and the 
arts of life. 8vo. Each number will contain ninety-six pages, 
beautifully printed, with illustrations. Price, per year, in ad- 
vance, $2 : single number, 50 cents. 

" It will be remembered that this is the first periodical ever commenced, devoted 
exclusively to phrenological science. It has already been more than twenty years 
before the public, and may be regarded as the phrenological pioneer of the old world. 
By the republication of this profound and philosophical work, the American public 
will be brought in a close and regular mental communication with the leading Phre- 
nologists of Europe." 

DR. JOHN BTJRDELL, DENTIST. 

THE TEETH : THEIR STRUCTURE, DISEASE, AND 

TREATMENT, WITH THE CAUSES OF EARLY 
DECAY. With directions in relation to their care and preser- 
vation. 12mo. Illustrated with one hundred engravings. Bound 
in muslin, gilt, 40 cents: cheap edition, in paper, only 12£ cents. 

"This work is designed to convey all the necessary information relative to the 
Teeth. It is adapted to the use of every individual — Man, Woman, and Child— who 
may, by careful usage, preserve, until a good old age, those indispensably necessary 
organs. The suffering and excruciating pain now so common might be avoided hy 
due attention to the Teeth." 

" It is a scientific, practical, thorough, and popular treatise on the useful and orna- 
mental organs of mastication, which are now too frequently suffered to become a 
disgrace and a nuisance in many a 'human face divine.' Read this book, and neglect 
your Teeth, if you dare." — Boston Daily Chronotype. 



L. N. FOWLER. 

THE PHRENOLOGICAL GUIDE : DESIGNED FOR THE 

USE OF STUDENTS OF THEIR OWN CHARAC 
TERS. Containing the first principles of the science, togefh 
er with an illustrated description of the temperaments. Twenty ; 
ty-fifth edition. 12mo. Price, 12J cents. 

"Most of the organs are illustrated by two engravings, showing each organ large 
and small, also a representation of a perfect male and female head and body. An 
excellent work for beginners, who will usually read a small work, rather than a larger 
volume. We cheerfully recommend it, especially to students." — Island City. 

BY THE SAME AUTHOR. 

SYNOPSIS OP PHRENOLOGY AND PHYSIOLOGY: 

COMPRISING A CONDENSED DESCRIPTION OF 
THE BODY AND MIND. Also the additional discoveries 
made by the aid of Magnetism and Neurology. Small quarto. 
Illustrated with forty-two engravings. Price only 12£ cents. 

•'This work is calculated for, and adapted to, those who are yet unacquainted with 
their phenological and physiological organizations. It is written with a view to 
instruct, and teach us how to apply these principles to ourselves and others. The 
simple and familiar manner in which it is written, will render it easily understood, by 
all who read it. 



PROFESSIONAL EXAMINATIONS, WITH VERBAL OR 

WRITTEN DESCRIPTIONS OF CHARACTER, GIVEN 
WHEN DESIRED. Including directions as to the most suit- 
able occupations, and the selection of partners in business and 
congenial companions for life. Price, for a verbal description, 
with a chart, $1 00 : for a full written opinion, $3 00. 

"These examinations will be found most valuable, as well as exceedingly interest- 
ing. The advice given in relation to health, regulating the propensities, appetite, hab- 
its, and so forth, is worth more than many times the cost of the examination. Prob- 
ably in no other way can a small amount be spent to an equal advantage." 

THE PHRENOLOGICAL CABINET AND MUSEUM, 

NEW YORK, CONTAINS A VAST NUMBER OF 
PHRENOLOGICAL SPECIMENS, and is always free 
to visitors, by whom it is continually thronged. 

" This collection consists of a great variety of skulls, both human and animal, from 
all nations and tribes, amounting to several thousand, to which a constant addition 
is being made, by travellers in our own, and voyagers to other countries." 



N. B. Any works named in this Catalogue may be ordered and received by return 
of the first mail, at a trifling expense, by enclosing in a letter the requisite amount, 
and directing the same, post paid, to FOWLERS AND WELLS, 

131 Nassau Street, New York. 

£d=* Small coin, from six to fifty cents, or several bank notes, may be enclosed in a letter, and sent " 
mail to the publishers, without increasing the postage. 



a- 



H' 52 - 7 


















^ <£ *dY$f/h~ ^ a^ *4 





<^ ' . . s * G V \3 -o . . * A, ,* -, , , 











^ 








i- - 7 ^ 





























■ 



LIBRARY OF CONGRESS 



022 020 508 3 




